Tibakyenga and 7 Others v Tibaijuka (Miscellaneous Application 13 of 2023) [2024] UGHC 637 (5 July 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HIGH COURT MISCELLANEOUS APPLICATION NO 13 OF 2023** 5 **(ARISING FROM HIGH COURT CIVIL APPEAL NO 102 OF 2016) (ARISING FROM NTUNGAMO MAGISTRATES CIVIL SUIT NO 47 OF 2013)**

- **1. TIBAKYENGA BERNARD** - **2. MUSHABO FABIANO** - 10 **3. TUMWESIGYE SAULO** - **4. KEIKIRIZA BONAVENTURA** - **5. BAGOROGOZA JUSTUS** - **6. TOPHER RUSHONGO** - **7. RUTASIRAARA WILLIAM** - 15 **8. BAKEHENA CYRIL ----------------------------------------------------- APPLICANTS**

**VERSUS**

**TIBAIJUKA FRANCIS ------------------------------------------------- RESPONDENT**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### 20

## **RULING**

### **REPRESENTATION**

The Applicants were represented by M/s Tumusiime, Kabega & Co. Advocates, while the Respondent was represented by M/s Ngaruye Ruhindi, Spencer & Co.

25 Advocates.

### **BACKGROUND**

The Application was commenced on 13th February 2023 by notice of motion under; Section 82 of the Civil Procedure Act Cap 71, Section 33 of the Judicature Act Cap

30 13, Order 46 Rule 1(a), (b), 2,4 and 8 of the Civil Procedure Rules SI 71-1 seeking orders;

- 1. The judgment/decree of Hon. Justice Tadeo Asiimwe in Civil Appeal No.102 of 2016 (Tibakyenga Bernard and 9 Others versus Tibeijuka Francis) delivered on 11th February, 2021 be reviewed and set aside. - 2. Costs of this Application be provided for. - 5

The Application is supported by the affidavit of Mushaho Fabiano – the 2nd Applicant, while the Respondent filed an affidavit in reply on 12th April 2023. The 2 nd Applicant filed an affidavit in rejoinder on 4th May 2023.

#### 10 **GROUNDS**

The grounds of the Application as stated in the notice of motion are;

- 1. On 11th February, 2021, Hon. Justice Asiimwe Tadeo delivered a judgment in Civil Appeal No.102 of 2016. - 2. That the learned Judge gave an order dismissing the Appeal and further - 15 awarded costs both in the trial and appellate Courts to the Respondent. - 3. The Applicants being dissatisfied with the whole of the judgment of this Court pray that the said judgment be reviewed and set aside. - 4. That during the hearing of the appeal, the Applicants made an application (Misc. Application No.2 of 2020) to be allowed to produce and introduce an - original sale agreement dated 2nd 20 August, 1988 between Babishweka and Biryomumaisho for the purposes of forensic analysis by a handwriting expert since the same could not be produced at trial before the Magistrate Grade 1 at Ntungamo and the said Application was dismissed. - 5. That the learned Justice erred when he dismissed the said Application, yet it 25 sought introduction of new evidence which was necessary in the determination of the Appeal. - 6. That as a result, the learned Justice erred in law and fact when he resolved that he was in agreement with the decision of the trial Magistrate that the Respondent was the rightful owner of the disputed land thus failing the 1st, 2nd and 3rd 30 grounds of the appeal. - 7. That the learned Justice arrived at the decision of the appeal without consideration of new and important matters of evidence having denied the Applicants from introducing the original sale agreement in issue for forensic analysis and handwriting expertise analysis.

- 8. That the learned Justice erred in law and fact when he held that the Appellants/Applicants had not provided sufficient evidence to prove how they came to own the land communally yet the Defence witnesses before the trial Magistrate clearly stated that the suit land belonged to the cattle keepers of - 5 Nyanga and Rubaare. - 9. That the learned Justice ignore the fact that the trial Magistrate had no capacity to interpret the said agreement understand it as she purported to do in her judgment. Production of the said agreement was pivotal in deciding the appeal. - 10. That the learned Justice erred when he held that he had no reason to interfere - 10 with the amorphous order for the award of general damages yet the said award/decision was premised on erroneous and wrong evaluation of evidence. - 11. That the reverse of the same by review is just and fair in the circumstances. - 12. That this Application has been brought without undue delay. - 13. It is in the interests and fair to all parties that this Application be allowed.

### **PRELIMINARY OBSERVATION**

I would like to first state that much of what is listed above as grounds in an application for review is evidence. This is manifested by the fact that much of what is listed above as grounds is produced verbatim in the affidavit in support. When 20 drafting an application, the grounds are proved based on the evidence in the

affidavit in support, so it is not proper to list evidence as grounds in the application.

## **SUBMISSIONS**

### **Applicants' submissions**

- 25 The applicant did not follow the 13 grounds that were listed in the applications but rather submitted on four grounds listed in their submissions, which are; - 1. The learned Justice erred in law and fact when he dismissed miscellaneous application no 2 of 2020 yet it sought to introduce new evidence which was 30 necessary in the determination of the appeal vide Civil appeal No 102 of 2016. - 2. The learned Justice erred in law and fact when he ignored the fact that the trial magistrate who delivered the judgement had no capacity to interpret an agreement as she purported to do so in her judgment.

- 3. The learned Justice erred in law and fact when he upheld the decision of the trial magistrate that the respondent herein is the rightful owner of the disputed land. - 4. The learned Justice erred in law and fact when he held that the applicants 5 herein had not provided sufficient evidence to prove how they owned the land communally, yet defence witnesses before the trial magistrate clearly state that the suit land belonged to the cattle keepers of Nyanga and Rubaare. - 10 In regard to the ground 1, that the learned Justice erred when he dismissed the said Application yet it sought introduction of new evidence which was necessary in the determination of the Appeal, counsel submitted that the Applicants made an application to have the sale agreement subjected to forensic analysis by a handwriting expert which prayer was denied, and that led to a miscarriage of - 15 justice.

In regard to ground2, that the learned Justice ignore the fact that the trial Magistrate had no capacity to interpret the said agreement understand it as she purported to do in her judgment, counsel contended that the trial Magistrate was

20 not conversant with the Runyankore/Runyakitara language but proceeded to issue a judgment over an agreement which was produced without interpretation.

In respect to ground 3 & 4 , Counsel prayed for this Court to find that the suit land was communal and belonged to the Applicants. He then concluded by praying for 25 the application to be allowed.

#### **Respondent's submissions**

Counsel for the Respondents objected to the application contending that it was a disguised appeal, He then referred to Mulla the Code of Civil Procedure 16th Edition 30 page 1193 in support of his assertion that this a review not an appeal.

Counsel contended that it is shocking that the applicants are blaming the Learned Judge for dismissing HCMA 2 of 2022 , yet this application is not for review of HCMA 2 of 2020, and furthermore no appeal was made against the ruling in HCMA 2 of 2020. The respondent then prayed that the application be dismissed with costs.

### **Applicant's rejoinder**

5 In rejoinder, counsel for the Applicants reiterated his earlier submissions and added that where an important matter of evidence, upon discovery could not be produced by the applicants at the time when the decree is made is a ground for review.

### **DETERMINATION**

10 In principle a court is empowered to review and revise a judgment as was stated by Hon Justice Musa Ssekana in his ruling in **LUITINGH LAFRAS AND ANOR V SPECIAL SERVICES LIMITED HCCA 572 OF 2020** where he stated that**;**

*"A review is reconsideration of the subject matter by the same court and by* 15 *the same judge. Since he/she is better suited to correct to remove any mistake or error apparent on the face of his/her own order. It is the duty of the court to correct grave and palpable errors committed by it to prevent miscarriage of justice."*

20 This court therefore has a duty when moved by an aggrieved person by way of an application investigate, and where necessary address the grievance raised by way of a review. The governing law in this regard is Section 82 of the Civil Procedure Act Cap 71 which provides that;

25 *"Any person considering himself or herself aggrieved— (Emphasis added.) (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* 30 *the order, and the court may make such order on the decree or order as it thinks fit."*

and Order 46 rule 1 of the Civil Procedure Rules S.l 71-1 which provides that;

*1)Any person considering himself or herself aggrieved—*

5 *(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* 10 *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* 15 *against him or her, may apply for a review of judgment to the court which passed the decree or made the order.(Emphasis added.)*

An aggrieved person was defined in **MOHAMED ALLIBHAI VS W. E BUKENYA MUKASA & DEPARTED ASIANS PROPERTY CUSTODIAN BOARD SUPREME COURT** 20 **CIVIL APPEAL NO. 56 OF 1996**, where Hon Justice Odoki, JSC, explained that;

> *"A person considers himself aggrieved if he has suffered a legal grievance. A person suffers a legal grievance if the judgment given is against him or affects his interest."*

It is my opinion that an application for review is made in specific reference to a decision, in this case the application for review is in respect to the decision of the trial Judge in Civil Appeal No.102 of 2016. An application for review of a particular decision does not by implication include a review of rulings in applications that 30 were filed and concluded prior to making the decision that is the subject of an application for review. In short, an application for review is specific to the decision under review.

Page **6** of **8**

The evidence on court records shows that the application for review is in respect to the decision of the trial Judge in HIGH COURT CIVIL APPEAL NO 102 OF 2016 *(See heading and orders sought in application for review in no 13 of 2023).* I therefore find that there is no application for review of HCMA no 2 of 2020 in which the

5 applicant sought to adduce evidence, therefore ground 1 fails.

I will now deal with the grounds 2 3 and 4 collectively

An aggrieved person that is entitled to apply for review of a decision of a judicial

- 10 officer is one that has suffered a legal grievance. I have perused the court record and note the following. - 1. The application, HCMA 2 of 2020, to adduce new evidence during the determination of the appeal, was dismissed and neither was an appeal preferred, nor was an application for review in respect to HCMA 2 of 2020 15 made in court. (*See paragraph 5 and 7 of the affidavits in support*).

The applicant did not follow the laid out legal steps if he was aggrieved by the dismissal in HCMA 2 of 2020. I therefore find that he cannot claim to suffer a legal grievance regarding the decision in HCMA 2 of 2020. So ground 20 1 fails.

2. The learned Judge, in his judgement in High Court Civil Appeal 102 of 2016, that is the subject of this review held that the respondent herein adduced a purchase agreement showing that he purchased the land from 25 Biryomumasho Benon and it was exhibited as PEX2 *(See page 5, line 10 – 16 of the Judgement attached as annexture C to the affidavit in support)* yet the applicants herein failed to prove their claim to communal ownership of the suit land *(See page 5, line 16 – 19 of the Judgement attached as annexture C to the affidavit in support).*The Learned Judge then went on to agree with the 30 finding of the Trial Magistrate.

> Page **7** of **8** It is trite law that he who alleges must prove as is stated in section 101 of the Evidence Act. The evidence on court record, shows that whereas the respondent herein had an agreement for the suit land put on court record as

an exhibit, the applicants herein had none on court record as an exhibit when the Trial Magistrate decided NTUNGAMO MAGISTRATES CIVIL SUIT NO 47 OF 2013. In the same vein the applicant herein did not have any agreement to prove ownership of the suit land on record when the trial Judge decided HIGH COURT CIVIL APPEAL NO 102 OF 2016. In my opinion, a party cannot claim to be legally aggrieved, when a case is decided against him or her due to their failure to adduce evidence on court record in compliance with section 101 of the Evidence Act. So grounds 2,3 & 4 fail.

- I would like to state that the grounds and determinants for consideration in an 10 appeal are different from the grounds and determinants for consideration in an application for review. I therefore agree with counsel for the respondent that the applicants attempted to present this application as a disguised appeal, that is why reference was largely made to HCMA 2 of 2020 to adduce evidence at appeal, yet the applicants knew it was dismissed, no appeal was preferred against it and the 15 - application at hand for review was even not in respect of HCMA 2 of 2020.

The applicants have not shown that they have suffered a legal grievance, as such a case has not been made out to justify a review of the decision of Hon Justice Asimwe Tadeo in High Court Civil Appeal 102 of 2016.

In conclusion, I dismiss this application with costs.

**NSHIMYE ALLAN PAUL M.** JUDGE 05-07-2024

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