Tinka v Butera and Another (Miscellaneous Application 38 of 2021) [2024] UGHC 430 (26 April 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MASINDI

**MISCELLANEOUS APPLICATION NO. 0038 OF 2021** (Arising from Civil Appeal No. 5 of 2019)

TINKA CHARLES :::::::::::::::::::::::::::::::::::: (Administrator of the Estate of the Late Kyairagwire Yolamu & Kiiza Balamu)

#### VERSUS

1. BUTERA GEORGE ::::::::::::::::::::::::::::::::::::

#### 2. SEBUTUKU JAMES

Before: Hon. Justice Byaruhanga Jesse Rugyema

# **Ruling**

- $[1]$ This is an Application brought under S.82 CPA and O.52 rr 1,2 & 3 CPR for orders that the Ruling and orders in M. A. 145 of 2019 be reviewed and costs of the Application be provided for. - $[2]$ The Application is based on grounds set out in the Affidavit of the Applicant in support of the Application which briefly are: - $1.$ The Ruling is contrary to Chief Justices' direction on interim injunction orders. - $2.$ The interim order did not have a time frame, that it was a permanent order. - $3.$ The Ruling seemingly disposed off the main **Application No.** 144 of 2019 and Appeal No. 005 of 2019 without hearing the Applicant's side of the case.

- $4.$ The Ruling and orders were inconsistent with the records on the Court file to the extent that he was ordered to return the Respondents' heads of attached cattle yet the bailiff had filed a return on 25<sup>th</sup> November, 2019 to the effect that he had attached only 30 heads of cattle which he returned to the Respondents. - $[3]$ The Respondents opposed the Application through an Affidavit in reply deposed by the $2^{nd}$ Respondent, **James Sebutuku** which is to the effect that: - 1. The claim that this Court ordered the Applicant to return 62 heads of cattle to the Respondents is false. - $2.$ The claim that only **30** heads of cattle were attached is false because the Applicant in his earlier Affidavit in reply in H. C. M. A. No. 145 of 2019 admitted that 62 heads of cattle were attached and this fact was captured in the Ruling of this Court. - 3. That the bill of costs and application for execution were filed by deceased person and were therefore null and void and were accordingly set aside in H. C. M. A. No. 145 of 2019.

## **Background**

$[4]$ The Applicants; Kyairagwire Yolamu and Kiiza Balamu, now deceased, were the successful parties in H. C. C. A. No. 59 of 2005. The Respondents appealed to the Court of Appeal, Kampala vide Civil Appel No. 28 of 2009 but the appeal was dismissed and the file was returned to this Court for execution.

- $[5]$ The Applicants' bill of costs which was drawn and filed in 2008 immediately after this Court's Judgment in the names of the now deceased; Kyairagwire Yolamu and Kiiza Balamu was taxed in 2019 after the Court of Appeal dismissal order. It was allowed at $Ugx. 34,298,350=$ . - $[6]$ The Respondents objected to the execution by filing 3 sets of pleadings; M. A. No. 145 of 2019 for interim stay of execution, 144 of 2019 for substantive stay of execution and Civil Appeal No. 59 of 2019. This Court gave a Ruling in M. A. No. 145 of 2019 granting an interim order staying execution. However, during the hearing of this Application i.e. 145 of 2019, a preliminary point of law was raised which was to effect that a bill of costs was filed by deceased persons and that any action brought in the names of the dead persons is a nullity ab-initio. The determination of the preliminary point of law disposal of the application thus:

"....... the bill of costs filed by Kyairagwire Yolamu and Balamu Kiiza (deceased persons) together with the application for execution are void ab-inilio and are hereby struck out. The taxed bill of costs and consequent application for execution against Butera George and Sebutuku James are hereby declared null and void and set aside. ....further order that the attached 62 heads of cattle be returned to the Applicants, Butera George and Sebutuku James".

$[7]$ The present Applicant (Administrator of the Estate of Kyairagwire Yolamu and Kiiza Balamu) was dissatisfied with the above Ruling

hence filed this Application for review. The law providing for review of decision of Court is found in S.82CPA. The provision provides for the right of any person aggrieved by a decree or order from which an appeal is allowed under the Act but from which no appeal has been preferred to apply for a review of the judgment to the Court, which passed the decree or order. Order 46 of the CPR provides the details for jurisdiction of review.

### "Order 46

- $(i)$ Any person considering himself aggrieved; - by a decree or order from which an appeal is $(a)$ allowed, but from which no appeal has been preferred; or - by a decree or order from which no appeal is $(b)$ 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 knowledge or could not be produced by him at the time when the decree was passed or the order made on an 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 may apply for a review of judgment to the Court which passed the decree or made the order". - In the instant Application, the grounds for the Application for $[8]$ review are as follows:

- 1. The Ruling is contrary to Chief Justice's directions on Interim injunction orders. - $2.$ The interim order did not have a time frame for it with a permanent order. - $3.$ The Ruling seemingly disposed off the main **Application No.** 144 of 2019 and Appeal No. 05 of 2019 without hearing the Applicant's side of the case. - $4.$ The Ruling and orders were inconsistent with the record on the Court file. - $[9]$ In the Nakivubo Chemists (U) Ltd [1979] HCB 12, while interpreting **0.46 CPR** held that for an applicant to succeed in a claim for review has to show: - $1.$ That there is discovery of a new and important evidence previously overlooked by excusable misfortune. - $2.$ That there is discovery of some error or mistake apparent on the face of the record. - $3.$ That review ought to be made by Court for any other sufficient reason. - [10] In the instant case, the impugned Application M. A. No. 145 of 2019 was for an interim order staying execution. The Application was determined by resolving a preliminary point of law which was to the effect that the bill of costs and the execution sought to be stayed were void *ab-nitio* for they were filed by dead persons. The argument of Counsel is that this Ruling is contrary to Chief Justice's directives on interim injunction orders on the grounds

- that it disposed off the main M. A. No. 144 of 2019 and Civil **Appeal No. 05 of 2019** which were pending hearing and disposal before this Court. - $[11]$ In my view, the fact that a ruling in one application had the effect of disposing off the other pending applications has never been a ground for review. It is neither an error nor a mistake apparent on the face of the record. - $[12]$ In Levi Outa Vs. Uganda Transport Co. [1995] HCB 340, it was held that mistake or error apparent on the face of the record refer to an evident error which does not require extraneous matter to show its incorrectness, that it is an error so manifest that no Court would permit such an error to remain on the record, see also Edison Kanyabwera Vs. Pastori Tumwebaze, S. C. C. A. No. 6 of 2004 at p.22. - The Applicant's argument is that the bill of costs which formed $[13]$ the subject matter of M. A. No. 145 of 2019 was filed when both the deceased Applicants were still alive and therefore, that after the dismissal of their Appeal before the Court of Appeal and the file was returned to this Court, the Registrar of this Court resumed from where the file had stopped and taxed it accordingly. That therefore, this Court acted in all unfairness when it allowed the raised preliminary point of law with costs to be paid by Mr. Tinka **Charles**, the present Applicant. That if the taxation was done by Court in error when the Appellants were dead, then this Court would have declared the proceedings to have been irregular and ordered $\mathbf{a}$ re-taxation between the Administrators and Respondents.

- [14] Lastly, that this Court ordered for return of the **62** heads of cattle to the Respondents yet he had never actually received the cattle. That the execution was stopped and there were no heads of cattle that remained attached. That the return filed by the Bailiff was to the effect that only 30 heads of cattle had so far been attached and the Bailiff returned them to the Respondents upon halt of the execution. That the Ruling was therefore not based on the facts on Court record thus caused a grave injustice to the Applicant herein. - $[15]$ Again, I find the above arguments not disclosing any error or mistake apparent on the face of the record. The dismissal of the Application was based on the fact that the Applicants who filed the bill of costs and execution that was sought to be stayed were dead persons. Relying on the authority of **Fort Hall Bakery** Supply Vs. Fredrick M. Wangoe (1959) EA 474 this Court held that the bill of costs, application for execution and consequent attachment of the 62 heads of cattle by the deceased Applicants who had long died cannot be allowed to stand. This was an intended decision of Court and whether or not the Judge misapplied the principle in Fort Hall Bakery Supply Case (Supra) cannot be subject of review. - [16] As regards the order for return of the 62 heads of cattle, the Judge relied on the evidence on record. The Affidavit in support of the Application together with the Application referred to 62 heads of cattle which in the absence of any rebuttal evidence, the Judge believed and made the necessary order of return of the animals. The fact that the bill of costs and execution had been found void

ab-initio, the order for return of the attached animals was necessary.

[17] What this Application is after or what the Applicant's Counsel has disclosed in his submissions is mere dissatisfaction with the decision or that the same is wrong but such opinion ought to be made subject of an appeal, Mgg Vs. Susan Waguama & 4 Ors [2022] e KLR. In Mpiji Town Council Vs. Jamil Kisuule H. C. M. A. No. 6 of 2016 [2017] UGH CCD 150, Court observed that;

> ....... It is also noted that the Applicant's submissions require arguments and execution which could have been by way of appeal and not review as brought by the Applicant".

- [18] In the instant case, I find that all the matters raised by the Applicant are contentious and should have been addressed through an appeal and not the present review Application. - $[19]$ In conclusion, I find that in the circumstances of this case, the Applicant has not established that there is an error or mistake or any other sufficient cause to require review of the decision in H. C. MA. No. 145 of 2019. As a result, I find this Application bereft of any merit and the same is accordingly dismissed with costs to the Respondents.

Dated at Masindi this 26 day of ...................................

Byaruhanga Jesse Rugyema **JUDGE**