[1991] UGHC 35

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 436 OF 1989

APPLICANT. ATTORNEY GENERAL : $\bullet$ versus

GEORGE BROWN TURYAMUREBA : $\overline{a}$ $\overline{a}$ RESPONDENT. BEFORE:- THE HON. MR. JUSTICE J. W. N. TSEKOOKO

## ORDER

There is an application in the form of Notice of Motion instituted under 0.42 Rules 1 and 6 of the Civil Procedure Rules and Section 83 of the Civil Procedure Act where by the applicant seeks to have judgement of this Court delivered on 4/9/1990 reviewed.

When the motion came up on 27/2/1991 for hearing, Mr. Hugisha for the Respondent raised a Preliminary objection to the effect that the motion was not properly before the Court. He contended that after judgment had been delivered this Court became functus officio in respect of the suit. That in that way an Independent file would be opened up combining HCCS No.436 of 1989 and an earlier HCCS No.488 of 1988 the judgment of which necessitated the present application. He submitted that the application should be struck out.

In response, Mr. Wabunoha, learned State Attorney appearing for the applicant submitted that the application is properly before the Court as it relates to HCCS 436/89 which was latter<br>That a joint application could not be instituted as HCCS to HCCS 488/88 had already been determined and in any case the applicant was not party there to.

He further submitted that there is no rule that requires this application to be instituted as a miscellaneous application. That if there is irregularity, such occasions no injustice because a copy of the decree from HCCS 488/88 is attached to the application. That there is irregularity, occasions injustice.

$\frac{1}{2}$

488/88

Love Thank

That there is no need to go to the detailed merits or demerits of this application for review as would be the case on an appeal®

I do not agree with the contention by Mr. Mugisha that once Judgment has been delivered the Court becomes functus Officio# Order *^2* Rule: (1) Under which the application was instituted States.:-

> ''Any person considering himself 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 deligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made against him, may apply for a review of Judgment to the Court which passed the decree or made the order?

The wording of the shbrule clearly enables this Coyxt te entertain an application of the sort before me after Judgment has been delivered. So does Section 8? of the Civil Procedure Act which was also cited on the application. I therefore hold that I have not become functus Officio in respect of this application® And See Brooke Bond Liebig (T) Ltd vs Mallya (1975) E. A. 266 in which the Court of Appeal for East Africa considered that 0.4j of Civil Procedure Rules of Tanzania which is similar to our 0.42 and held that the-Judge of the High Court of Tanzania had jurisdi ction under that order to review his previous order: See also J. Ndawula vs Mubiru and D. A. P, Custodian (1976) HCB.102. •

In view of the above holding, the argument whether the application should have been by way of a miscellaneous application, rather than as it is now, does not arise. But ^I should say that in view of the contents of the affidavits in support of the application which contents suggest in effect that the Judgment

the Irregularity of the form of the application since -• it concerns consideration of an alleged Illegality which would require me to Ignore other procedural aspects of this matter, namely that since the Judgment and decree were obtained exparte the application would have been made under order ⁹ Rule 24 of CPR which was appropriate rather than 0.42 of CPA Rules\*

As a result the objection is over ruled. The respondent shall pay the costs of this preliminary objection.

J. W. N."TSfcKOOKO.

J ^U ^D ^G E. 10.4.1991

10.4.1991 at 9.06 a.m. Mr. Mugisha for Respondent. Mr. Wabunoha for ?Lpplicant. Gulemye Interpreter. Ruling delivered.

J. W.lT\* 'VSjj'KOOKO.

JUDGE. 10.4.1991.

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