The Body of Christ Church v Bakashaba (Miscellaneous Application No. 2796 of 2024) [2025] UGHCLD 103 (24 June 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION MISCELLANEOUS APPLICATION NO.2796 OF 2024 (ARTSING FROM HCMA NO.786 OF 2024) (ARTSING FROM HCCS NO. s8l OF 2023)

## THE BODY OF CTIRIST CHURCH : : : : : : : : : : ] : : : : : : : : : : : : : : : : : : : : : : : APPLICANT VERSUS

BAKASHABA ANTIIONY ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

## BEFORE LADY JUSTICE CHRISTINE KAAHWA RULING.

#### Introduction.

This application is brought under Section 98 of the Civil Procedure Act, (CPA), Cap282, Section 33 of the Judicature Act, Cap 16 and Order 46 rule (1)(b) and 8 of the Civil Procedure Rules, SI 7 I - I (CPR) for Orders that;

- l. The Ruling and Orders granted against the Applicant by the Leamed Assistant Registrar, His Worship Kagoda Samuel Ntende Moses on the27't' August 2024 in Misc. Application 786 of 2024 be reviewed and set aside. - 2. The said Misc. Application No. 786 of 2024 be fixed and heard inter-parties. - 3. The costs ofthis Application be borne by the Respondents

The application is supported by the affidavit of Issoke Zabulon, the lead pastor and representative of THE BODY OF CHRIST CHURCH which briefly states that;

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- 1. The Respondent on the 2'd day of April filed Misc. Application No.786 of 2024; Bakashaba Antony v Nathan Ocan, seeking orders that the Applicant be added to HCCS No.581 of 2023 as a defendant and leave be granted to the Respondent to amend the Plaint accordingly. - 2. Nathan Ocan had filed an affidavit in reply to the Respondent's application wherein he intimated that he would raise a preliminary objection with the capacity of disposing of the whole application. - 3. On the l9'r'June 2024,when the earlier application came up for hearing by the Orders of the Court and consent of the Respondent, the Respondent was directed to file a proper application to include the Applicant and effect service of the earlier Application on her. - 4. The Respondent, then Applicant in the earlier application, did not serve the aforesaid earlier Application onto the Applicant, and thus she did not have an opportunity to file a reply, even though the Respondent/Applicant had knowledge of the Applicant's physical location. - 5. That His Worship Kagoda Samuel Ntende Moses noted that no affidavit in reply had been filed and based his ruling on only the Respondent's pleadings.

The Respondent filed an affidavit in reply deposed by his counsel Bernard Mabonga of M/S Musoke & Marztq Advocates & Legal Consultants and stated that all pleadings in the impugned application were served duly on the chambers of M/S Lufunya Associated Advocates, Counsel for the Respondent, and that it is upon service that Counsel Andrew Nsamba attended court for the Respondent (now Applicant). That by virtue of his training as an advocate, he knows that non service of summons and /or pleadings in a matter before court is not one of the grounds for Review of a Judgement or Ruling of Court.

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That the Application does not demonstrate how the Applicant is aggrieved by the Ruling nor does it show any grounds for Review to warrant the court to review its Ruling or Orders. He prayed that the application be dismissed.

#### Representation and hearing.

The Applicant was represented by M/S Kaaya , Birikujja Adovacates and Legal Consultants while the Respondent was represented by IWS Musoke & Marzuq Advocates and Legal Consultants. Directions for filing submissions were issued on the 04th of March, 2025 but only the Applicant filed submissions.

### Issue for determination.

Whether the application discloses sufficient grounds to Review and set aside Ruling and Orders in Miscellaneous Application No. 786 of 2024.

### Submission for the Applicant.

It was submitted that Section 82 of the CPA and Order 46 Rule I of the CPR allow any party who feels aggrieved by a decree or order to seek for its review, as such the Applicant is acting within the law to present this Application as a person aggrieved by the decision of the Court in Miscellaneous Application No. 786 of 2024.

That service of court process is considered as a fundamental aspect of the nonderogable right to a fair hearing expounded under Article 28 of the 1995 Constitution of the Republic of Uganda, as it ensures that a person is properly notified of legal proceedings against them and allows them to participate in a case. That the Respondent never attempted to serve the earlier Application even when they had full knowledge of the Applicant's physical address since they had

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prior to that served them with court process. That the Applicant was not accorded an opportunity to be heard in the said Apptication, thereby furnishing sufficient reason for review of the Ruling and Orders made in Miscellaneous Application No. 786 of 2024 under Order 46 rule 1 (1) (b) of the CPR. That the leamed Assistant Registrar based his decision on the fact that the Applicant had not filed an affidavit in reply.

#### Dctcrmination.

Section 82 ofthe CPA 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 by this Act, may apply for a review ofjudgement to the couft which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.

Order 46 rule I of the Civil Procedure Rules provides that;

( I ) 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 order made, or on account of some

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mistake or error apparent on the face of the record or for any other sufficient reasons, desires to obtain a review of the decree passed or order made against him or her may apply for review ofthejudgement to the court which passed the decree or made the order.

In the case of Muhammed Bukenya Allibai v W. E Bukenya & Anor SCCA No. 56 of 1996, it was held that Review is available to only those that are aggrieved by a decision they seek to review. An aggrieved party was defined as one who has been deprived of his property or whose right has been affected by the impugned judgement.

In John Imaniraguha vs Uganda Revenue Authority and Another HCMA 2770 of 2023, Hon. Justice Mubiru held that;

" Some record court h with th giving instances ofwhat constitutes a mistake or error apparent on the face of the are; where the applicant was not served with a hearing notice; where the as not considered the amended pleadings filed or attachments filed along e pleading; where the court has based its decision on a ground without the applicant an opportunity to address the same; and violation of the es of natural iustice. "

Review therefore connotes a judicial reexamination of the case in order to rectify or correct grave and palpable errors committed by a court in order to prevent a gross miscarriage of justice.

The grievance of the Applicant seems to me to be that the Respondent did not serve the Misc. Application 786 of 2024 on her and therefore denied her an opportunity to be heard; and that the consequent decision reached by the court on the 27th August 2024 was reached without her input. The order of the court was to the effect that the Applicant be added as a defendant to the Civil Suit 581 of 2023.

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The Respondent on the other hand, averred that all the pleadings were duly served on the Chambers of Lufunya Associated Advocates, counsel for the respondent therein (now Applicant), and it is upon that premise that counsel Andrew Nsamba attended court for the respondent when the matter was called for hearing.

The Respondent deposes in paragraph 3 of the affidavit in reply that Counsel Andrew Nsamba attended court for the Respondent (now Applicant) when this matter was called for hearing. He alludes to the letter marked "A" and the record of the court in Misc. Application No. 781 of 2024 but he does not attach the record of the court. Perusal of the letter dated 4th August 2023 shows that it was written on behalf of the Appticant in the instant application shows that there was an attempt to serve Mr. Ocan Nathan with court documents and intimidation of tenants allegedly on the orders of the Respondent in this application. I have not found the nexus between that letter and Misc. Application No. 786 of 2024. Nonetheless, I believe that this letter is related to Misc. Application No. 3854 of 2023, where the Applicant was being sued for contempt of Court Orders.

I observe that there is no affidavit of service attached to the affidavit of the Respondent as proof of service of Misc. Application 786 of 2024 onto Lufunya Associated Advocates. I find that the Applicant was not served and therefore his right to be heard in Misc. Application No. 786 of 2024 was violated. This in my view is sufficient ground for review of a matter.

The question that begs an answer is whether the Applicant is aggrieved by the impugned decision?

The record of the Court in Misc. Application No. 786 of 2024 shows that the Applicant, Bakashaba Antony, on the 2nd Aprrl2024, filed an application against

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Nathan Ocan, to amend the plaint in Civil Suit No. 581 of 2023. On the 18tr'June 2024,, the Applicant in the said application filed an amended Application and added the Applicant, THE BODY OF CHRIST CHURCH as the 2nd respondent.

Pursuant to the impugned orders of this court the Plaintiff/ Respondent filed an Amended Plaint in Civil Suit 581 of 2023 on the 2nd September 2024. The Applicant/ 2nd Defendant filed/ uptoaded his defence on ECCMIS on the 11'r' December 2024.

The Court in while rendering the decision in Misc. Application No. 786 of 2024 did not take into consideration the amended Application as can be seen from the heading and body ofthe Ruling.

In Misc. Application No. 3854 of 2023 filed by the Respondent the application, sought orders that Issoke Zabuloni and Zabuloni Kate to be found in contempt of court orders given in temporary Injunction in Misc. Application No. 1301 of 2023. In Misc. Application No. 3854 of 2023 the Respondent, Issoke Zabulon(who is the representative of the Applicant in this application) deposed as follows;

" 10. That I further state that the Respondents were wrongly added as parties to this application as the suit land was duly acquired and is owned by THE BODY OF CHRIST CHURCH as an independent registered institution for which I and the second respondent are just mere representatives.

IL That in further reply I state that the former registered proprietor the late Sempa Salim in 1990 donated part ofthe suit land measuring 20ft by 50ft to THE BODY OF CHRIST CHURCH as a gift inter vivos in writing and the church has been in physical possession of the same up to date.

I2. That all the beneficiaries of the Estate of the late Sempa Salim and their administrator sold the remaining portion to THE BODY OF CHNST CHURCH on

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the 8't' day of March 2013 even before the main suit wasfiled. The church has been in physical and legal possession since that date to date. "

In the said application the Respondents attached two agreements which show how the church came in possession of the suit property. Notable to mention is that the description of the land, in the apptication and in Civil Suit No. 581 of 2023 is the same to wit; Registered Volume 17 Folio 20 located on Block 253 Plot 485 Lukuli in Makindye Division.

Order I rule 10 (2) ofthe CPR SI 71-1 provides that;

"The court may at any stage of the proceedings either ttpon or withont the qpplication of either party, and on such terms as may appeor to the court to be jyglorder that the name of any party improperly joined, whether Plaintiff or Defendant, be struck ofi, and that the name of any person who ought to bejoined, whether as plaintiff or defendant or whose presence before the court maYbe necessary in order to enable the court eJfecntally md completely adiudicate upon and settle all trestions involved in the suit be added." (Emphasis mine)

Having reviewed the pleadings of the parties above, it is my considered opinion that the addition of the Applicant to Civil Suit 581 of 2023 as a defendant, is necessary for the court to effectually and completely adjudicate and settle all questions involved in the suil.

As earlier noted the Applicant/2'd defendant has already filed his defence. Despite the Applicant not being served with the pleadings in Misc. Application 786 of 2024 the Court can add a party to the pleadings on its own motion. I find that the failure to serve the amended application in Misc. Application. 786 of 2024 did,not occasion a miscarriage ofjustice and in that sense the Applicant is not aggrieved by the decision sought to be reviewed. I therefore decline to grant a review in this

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matter as it would be futile to rehear Misc. Application. 786 of 2024 as rehearing would delay the progression of the suit. In conclusion this application is dismissed and each party shall bear their own costs.

Dated at Kampala this 24th day of June 2025.

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Christine Kaahwa

JUDGE.