S.L.P Engineering and Contractors Limited v Nkambwe and Another (Civil Review 11 of 2020) [2021] UGHCLD 477 (9 February 2021)

# THB REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) Civil Review No.l1 OF 2020 (Arising out of Misc. App. No. 53 of 2018)

# S. L. P ENGINEERING & CONTRACTORS LTD::::::::::::::: APPLICANTS

### VERSUS

## 1. NKAMBWE CHRISTOPHER

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# 2. COMMISSIONER LAND REGISTRATION::::::: RESPONDENTS

# BEFORE: HON. LADY JUSTICE CORNELIA KAKOOZA SABIITI

#### RULING

This application is brought by Notice of Motion under Order 16 rule l(a), (b) and rule 8 of the Civil Procedure Rule, Section 98 CPA seeking orders that;

- i) The ruling of this Honourable court in Miscellaneous Cause No. 53 of 2018; Nkambwe Christopher Vs Commissioner Land Registration which was delivered on 8th October , 2019 be reviewed. - ii) The order of this Honourable court in the said ruling cancelling the applicant's lease which was entered on the I'r respondent's certificate of title in respect of the land comprised in Kyadondo Block 65 Plot 245 at

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Migadde on 7th September 1999 under instrument No. KLA 206934 be set aside.

- iii) The order to the 2nd respondent to reinstate the applicant's lease on the l't respondent's said title. - iv) Costs ofthe suit and the application be awarded to the applicant.

a

The grounds of the application are set out in the Notice of Motion and the Affidavit of Kishor Shivji Patel, Edward Kato Sebadawo and Lubowa Eddy' They briefly state that;

- i) At all material times since 7th September, 1999 the applicant was the lessee in respect of the I't applicant's land comprised in Kyadondo Block 65 Plot 245 at Migadde. - ii) The applicant is aggrieved by the court's order in Miscellaneous Cause No. 53 of 2018; Nkambwe Christopher Vs Commissioner Land Registration cancelling the applicant's lease. - iii) There is an apparent error on the court record warranting court to review the said ruling in that: - a) The applicant was not afforded a right to be heard in Miscellaneous Cause No. 53 of 2018 where court ordered for cancellation of the applicant's lease. - b) Clause 2(b) ofthe lease agreement prohibited the 1't respondent from seeking to terminate the said lease whatsoever. - iv) There is discovery ofnew evidence which is sufficient cause for review of the said ruling in that the l't respondent misled court in believing that there were illegalities on the lease agreement registered by the 2"d respondent in favour ofthe applicant and that the applicant had abandoned its leased land whereas not.

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v) It is in the interest of justice that the said judgment is reviewed as prayed to preserve the applicant's property rights over the suit land.

The application was opposed by Nondo Muhamad and Nkambwe Christopher the |4"rpona"rt. I note that parties mainly pleaded facts that would be argued in the main suit. I will not reproduce their averments here but I have ably considered them in my resolution. The applicant was represented by M/s Kateera & Kagumire and the 1.1 Respondent was represented by M/s Kivumbi Madinah Kikomeko Advocates & Solicitors.

I will first resolve the points of law raised by both parties.

Counsel for the applicant argued that the affidavits of reply do not meet the conditions under Order 19 rule 3(l) of the Civil Procedure Rules. That affidavits must be confined to matters of fact within the knowledge of the deponent. That the affidavits paragraphs are contentious and argumentative on matters of law hence prolix. The affidavits should be struck off.

I have read the paragraphs in the affidavit evidence the applicant's counsel refers to as being argumentative,, I find no explicit arguments made out by the respondent that would necessitate striking out his affidavit and that of Nondo Muhamad, the affidavits are stating out clear facts as known to them. I disagree with this averment and therefore ovemrle the objective.

Counsel for the respondent raised a point of law to the effect that Kishor Shivj Patel, Edward Kato Sebadawo and Lubowa Eddy deponed their affidavits but had no deed of authorization from the applicant to swear the affidavit on its behalf thus making the affidavits defective and the application incompetent.

The applicant being a company, is a legal person and can only act through its see: Owori Media and directors, authorized agents or holders of powers of attomey

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anor v Ecobank Uganda Limited MA. NO. I105 of 2014. Kishor Shivji Patel in paragraph one of his affidavit states that he is a director and company secretary of the applicant and swears in that capacity. It is on court record and not in contention that Kishor has been appearing in his capacity as the director ofthe applicant. The law presumes that certain categories of employees to have ostensible authority to act for the company. order 29 rule I of the Civil Procedure Rules provides;

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In a suit by or against a corporation any pleading may be signed on behalf of the corporation by the secretary or bv anv director or other principal o.tficer of the corporation who is able to depose to the facts of the case'

In light ofthe above, the objection that Kishor Shivj Patel had no authority to swear the affidavit to this application is overruled.

However, Edward Kato Sebadawo and Lubowa Eddy deponed their affidavits stating therein that they had been duly authorised by the applicant. There is no evidence of any written authority on record.

The finding of court in Lena Nakalema Binaisa & 3 ors Vs Mucunguzi Myers, HC Miscellaneous Application No. 0460 of 2013, citing Makerere University vs st. Mark Education Institute & ors, HC Civil suit No.378 of 1993, was that an affidavit is defective by reason of being sworn on behalf of another without showing that the deponent had the authority ofthe other.ln this case, Edward and Lubowa state that they were authorised by the applicant to swear their affidavits but they fail to attach any evidence proving that fact. Therefore the two affidavits of Edward Kato Sebadawo and Lubowa Eddy are struck offfrom evidence for being irregular.

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### **Resolution**

The specific issues for determination in this application are;

- 1. Whether this application meets the conditions for review under the law. - *2. What are the remedies available to the parties?*

Issue No.1: Whether this application meets the conditions for review under the law.

The provision for an application for review of court orders is Section 82 of the Civil **Procedure Act (CPA)** which provides as follows;

"Any person considering himself or herself aggrieved by decree or order of court from which an appeal is allowed but from which no appeal has been preferred or by a decree or order from which no appeal is allowed may apply for a review of judgment to the court that passes the decree or made the order."

Order 46 r.1 (a) and (b) more or less reproduce the wording of the Section 82 CPA (supra) verbatim but add the following;

".......and from the discovery of new and important matter or 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 an account of same mistake or error apparent on the face of the record, or any sufficient reason, desires to obtain a review of the decree passed or order made agaisnt him or her, may apply for a review of judgment to the court which passed the decree or made the order."

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 clearly, order 46 rulel (b) of the civil Procedure Rutes (cPR) lays out the conditions which the Applicant seeking orders of review must fulfill in order to fall within the ambit of Section 82 CPA (supra). Interpreting the same Section, the court in Outa Vs. Uganda Transport Company [19751 HCB 340 held that the particular conditions are;

- <sup>1</sup>. Discovery of new and important matters of evidence previously overlooked by excusable misfortune. - 2. Some mistake or error apparent on the face ofrecord. - 3. For any other sufficient reason but it has been variously held by courts that the expression "sfficient" shall be read as meaning sufficient of a kind analogous to (a) and (b) above.

Condition of error apparent on the face of record;

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Counsel for the applicant argued that the application is premised on an error apparent on the court record. Mistake apparent on court record refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error manifest and clear that no court would permit such an error to remain on record. Counsel cited the case of Al-Shafi Investment Group LLC Vs Ahmed Darwish Dapher & Darwish Al Marar Misc. App. No. 901 of 2017.

Counsel further avers that the I't respondent's application in Misc' Cause No' 53l2)l8 sought court to cancel the applicant's lease on the basis of illegalities and abandonment without making the applicant a parly to respond to those allegations. That it is natural j ustice that a party whose interests may be affected by court decisions be given a hearing as per Article 28( I ) of the Constitution' o11,4


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On the other hand, counsel for the 1't respondent contended that the applicant was not a party to MC No. 53 of 2018 therefore it was not necessary to serve the application on her. That the said suit was to direct the 2'd respondent to note a reentry on the register which it had ignored to do. That by the time MC. No. 53 of 2018 was filed in 2018 but the applicant had left the suit in 1999 and the l',l respondent was in possession.

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The l.trespondent counsel was of the view that such an applicant should not benefit from the provision because he was not aggrieved being that he acquired the lease illegally and referred to the case of Imran Ahmed v Gapco (u) ltd Misc. application no. 492 of 2013 read together with Mohammed Allibhia v Bukenya and another CA 56 OF 1996 which defined An aggrieved person /party who has been deprived of his property and they were of the view that such an applicant is just a lessee not the owner of the property

Discovery of new and important matters of evidence previously overlooked by excusable misfortune.

Counsel for the applicant submitted that there is new evidence by Kishor Shivji Patel as to particulars appearing in certificate of title with regard to the lease term of <sup>99</sup> years, the applicant's certificate of incorporation, clause 2(b) ofthe lease agreement expressly prohibited re-entries which relevant evidence had it been before the trial .judge, would not have been persuaded by the 1'1 respondent'

Counsel for the respondent on the other hand, opposed the averments and concluded that the application has failed to prove the conditions set under Order 46 and Section 82 of the CPA, the grounds were not proved on a balance of probabilities as required in civil matters. o)-' 01) ')-)

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I have read both submissions by counsel. In my opinion, the submission by counsel for the 1.1 respondent that the applicant was not a party to MC No. 53 of <sup>2018</sup> therefore it was not necessary to selve the application on it contradicts their earlier argument that they had abandoned the suit land could not be found on which this court relied on to make the order for cancellation of the lease. The 1't respondent having received the monies for the lease and knowing the applicant exists, he should have notified the applicant about the transfers if any and the court process in MC. s312018.

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on the grounds of discovery of new and important matters of evidence it is not disputed by the l't Respondent that the lease agreement titled under LRV 2763 Folio 1l Plot 245 Kyadondo Block 65 Migadde which had relevant information on the terms and conditions of the lease was not adduced in court by the 1't Respondent' Further, while considering the evidence holistically, I find that the applicant is indeed an aggrieved party with sufficient reason, alleging he had a subsisting lease which was cancelled without being given a chance to defend or to relinquish such rights, he had paid for the lease he holds. Under Article 44(c) of the Constitution,, the right to fair hearing is a non-derogable right. This court should have heard from the applicant first before ordering that its lease was illegal and ordering <sup>a</sup> cancellation of the same by the 2nd respondent. It is only fair that the applicant is <sup>a</sup> party to the said suit for court to effectively and fairly adjudicate on all issues regarding the suit land.

In the circumstances, the Application is granted and the following orders are made-

(a)The ruling and orders of this Honourable court in Miscellaneous Cause No' 53 of 2018; Nkambwe Christopher vs commissioner Land Registration whichwasdeliveredon8thoctober,2Ol9areherebysetaside',H o1)ol>t


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- (b)The Commissioner Land Registration is directed to reinstate the applicant's lease on the lst respondent's said title. - (c) Miscellaneous Cause No. 53/2018 be heard inter-parties with the applicant as <sup>a</sup> party. - (d)Costs of the application abide the main cause.

It is so ordered

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CORNELIA KAKOOZA SABIITI JTJDGE

Date:0910212021

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