[2022] UGCommC 27

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (COMMERCIAL DIVISION)

## **MISCELLANEOUS APPLICATION No. 285 OF 2021**

## (ARISING FROM MISCELLANEOUS CAUSE No. 44 OF 2020)

$\mathsf{S}$

# CENTENARY RURAL DEVELOPMENT BANK LTD ...................................

**VERSUS**

ODONGIPOU STANISLAU EMMANUEL....................................

#### BEFORE: HON. LADY JUSTICE SUSAN ABINYO

#### **RULING**

This application was brought by Notice of Motion under the provisions of sections 82 and 98 of the Civil Procedure Act, Cap 71 and Order 46 Rules 1,2 and 8 and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules SI 71-1 wherein the Applicant seeks the following orders: -

- 1. Reviewing and setting aside of the findings and orders that the Applicant lodged a mortgage on the Respondent's land comprised in Kyadondo Block 184 Plot 43. - 2. Reviewing and setting aside of the award of general damages and costs to the Respondent in the decision of this Court dated 26^th February, 2021.

20.

3. The costs of this application be provided for.

#### **Facts**

This Application is supported by the affidavit of Ronald Sekidde an Advocate working with the Applicant as Legal Manager Litigation deponed in paragraphs 1-16 and summarized as follows: -

That on 16^th September, 2020, the Respondent's Lawyers wrote to the Applicant's Head of Credit, the said letter is attached and marked Annexture 'A', to demand release of a mortgage on land comprised in Kyadondo Block 184 Plot 43.

- That the transactions complained about were said to have occurred way back $\mathsf{S}$ in 2007 and that the Applicant did not have any record of a mortgage on Kyadondo Block 184 Plot 43. That accordingly, the Applicant wrote to the Ministry of Lands to be availed a copy of the Mortgage Deed if any. - That at the time they were served with Misc. Cause No. 44 of 2020, the Applicant had not received a reply from the Ministry of Lands and that they accordingly, 10 filed their reply and submissions without the benefit of any documents from the Ministry of Lands. That however, on 16^th December, 2020 they had instructed Muhumuza Kiiza Advocates to follow up with the Ministry of Lands and that by 21^st December, 2020, Muhumuza Kiiza Advocates managed to obtain a search - report attached and marked Annexture 'C' in respect of Land comprised in 15 Kyadondo Block 184 Plot 43.

That on 12^th February, 2021 Muhumuza Kiiza Advocates forwarded to the Applicant a copy of the actual Mortgage Deed attached and marked Annexture 'D' which, was registered on Kyadondo Block 184 Plot 43. That this new evidence, shows that the Applicant lodged a mortgage on Busiro Block 184 Plot 43 which was executed by Yusuf Kibalama Sentongo but, the Land office erroneously registered the mortgage on Kyadondo Block 184 Plot 43.

That the Applicant has never lodged a mortgage on Kyadondo Block 184 Plot 43 and that the Mortgage Deed above, is new and important evidence which,

after the exercise of diligence was not in the Applicant's knowledge or 25 possession at the time Misc. Cause No. 44 of 2020 was litigated.

That the findings of Court and the award of general damages of UGX. 140,000,000 and costs was on the premise that the Applicant had lodged a mortgage on Land comprised in Kyadondo Block 184 Plot 43 without lawful

excuse. 30

That it is in the interest of justice to review the decision of this court.

The Respondent Odongipou Stanislau Emmanuel filed an affidavit in reply deponed in paragraphs 1-30 and summarized hereunder: -

That he is informed by his Advocates M/s Barungi Baingana & Co. Advocates which information he verily believes to be true that, the Applicant's application 35 is frivolous, vexatious, misconceived, an abuse of Court process and does not disclose any merits(s) or ground for review of the findings and orders of this Court and shall accordingly raise a preliminary objection at trial to have the same dismissed with costs to the Respondent.

That Misc. Cause No. 044 of 2020 was heard and determined on the 26^th day of $\mathsf{S}$ February, 2021 on its merits and the Applicant filed a reply and never denied any averment as contained in the affidavit in support and the ruling was delivered based on facts that are available on Court record.

That he is the registered proprietor on the certificate of title, a copy of which is attached and marked Annexture 'D' since, the 20^th day of July, 2001 vide 10 Instrument No. KLA227124, of land comprised in Kyadondo Block 184 Plot 43 situate at Nsasa, Wakiso District.

That he conducted a search at the Land Registry office at Wakiso on the 14^th day of September, 2020 and both the search he conducted and that

conducted by the Applicant on the 18^th day of December, 2020, revealed that 15 the Applicant on the 4^th day of June, 2007 registered a mortgage vide Instrument No. KLA 341728 onto his land which, he contends was without a justified reason or cause as, the Applicant absolutely had no interest in the said suit land.

- That he has been advised by his advocates that there is no new evidence to 20 show that the Applicant lodged or registered a mortgage on land comprised in Busiro Block 184 Plot 43 at Kababi, but was erroneously registered by the Land office on Kyadondo Block 184 Plot 43 Land at Nsasa, as the Applicant wants this honorable Court to believe. - That there are no new facts or evidence that has been brought to the attention 25 of this Court to warrant review of its order dated 26^th February, 2021, apart from a confirmation that the Applicant lodged and, or registered a mortgage on the Respondent's title since 2007 vide instrument Number KLA341728.

That the Respondent is not aware that the land office erroneously registered the said mortgage onto his land comprised in Kyadondo Block 184 Plot 43 Land at 30 Nsasa and that the said mortgage has existed on his title for 14 (Fourteen) years.

That the Applicant has never attempted to either remove the mortgage or lodge any complaint to the Commissioner Land Registration to have the said alleged error corrected and the register amended as required by law.

That Kyadondo as a Block and Busiro are separate and distinct and even, the 35 location where the said land is situate is different and that this cannot be a mere error but was intended by the Applicant since, the Mortgage Deed attached on the application has different details including the date and Instrument number as that of Yusuf Kibalama Ssentongo which, confirms the finding of Court that

⁵ the Applicont hos no reosonoble couse or excuse to lodge o mortgoge on the Respondent's Lond iitle.

Thoi he hos been odvised by his Advocotes M/s Borungi, Boingono & Co. Advocotes thot the findings of Courl were bosed on the foct thot the Appliconl lodged o mortgoge on his lond comprised in Kyodondo Block 184 Plot 43 ot

Nsoso ond thot it wos lodged wilhout lowful excuse or reosonoble couse by the Appliconl which is still ihe position. 10

Thot this Court finds ihis opplicotion for review devoid of meriis ond be dismissed with costs.

- The Applicont deponed on offidovit in rejoinder by Ronold Sekidde in porogrophs l-16 ond reiteroted their overmenis in lhe offidovit in supporl of the opplicoiion ond further contended lhot occording to the Mortgoge Deed which, hos been retrieved from Lond office, the Appliconl lodged o morlgoge on Lond comprised in Busiro Block l84 Plot 43 bui lhe Lond office erroneously regislered it on Lond comprised in Kyodondo Block 184 Plot 43. 15 - Thot the Applicont hos no objection to the Commissioner Lond Registrotion vocoting the mortgoge enoneously registered on Lond comprised in Kyodondo Block 184 Plot 43. 20

## Representolio n

The Appliconl wos represented by Counsel Nelson Nerimo of Nombole, Nerimo & Co. Advocotes & Legol Consultonts while the Respondenl wos represented by Counsel Ronold Mugiso of M/s Borungi Boingono & Co. Advoccrles.

Counsel for the porties herein filed wrilten submissions os direcied by the Courl.

# lssue for rminotion

Counsel for the Appliconi ond Respondenl filed submissions bul did nol specify the issue for ihe determinotion by Court.

This Court os required under Rule 3 of Order 15 ol the Civil Procedure Rules Sl 7l-I deemed il fit to phrose the issue for determinolion os below: -

Whether the Applicolion roises grounds for Review?

Arquments bv Counsel for lhe Aoolico nt

Counsel ciied ihe provision of section 82 of lhe Civil Procedure Act ond Order 46 Rules I ond 2 of the Civil Procedure Rules to submil thol lhe soid provisions ollow 35

ony person considering himself or herself oggrieved by o decree or order, to opply for review ond thot the some provision, gives this Court unfettered discretion which, should be exercised judiciously to review its ruling.

Counsel orgued thot ihe Appliconl exploined in deloil, the steps ii took to instruct lowyers io obloin o copy of the disputed Mortgoge Deed from Lond office ond thot the Mortgoge Deed ottoched ond morked Annexture 'D' wos

only obtoined on l2rh Februory,2021 ofter the heoring of the cose. 10

Counsel orgued furlher thol in lhe 51h ond 6rh lines ol lhe Mortgoge Deed, lhe poriiculors of Lond is indicoted os Block l84 Plot 43 Mengo Busiro ond thol the slomp ot the bottom right hond corner indicotes lhot the Morigoge Deed wos

lodged with the Moilo Registry on 24t^ Moy, 2007. Thol lhe Respondenl hos not rebuiled lhis evidence thot lhe Appliconl lodged o mortgoge on Lond comprised in Busiro Block 184 Plot 43 ot Mengo ond not on Kyodondo Block ¹⁸⁴ Plol 43. 15

Counsel furlher submitted thot il is unreosonoble for the Respondent to expecl the Applicont to instontly retrieve o copy of the Mortgoge Deed lodged woy bock in 2007, which is l4 yeors ogo ond ihol the Finonciol lnstitutions Act, under seclion 46(6) mondotes Finonciol lnstitutions to preserve linonciol ledgers ond other finonciol records lor o period of nol less ihon ten (10) yeors. Thot lhis cose orose ofler ihe expiry of 10 yeors which, is the moximum period for mondotory 20

preservotion of records. 25

Counsel contended thot the Applicont in this cose is oggrieved since, it is required to poy colossol sums of money for somelhing it did not do ond therefore, hos suffered o legol grievonce for purposes of review.

Counsel contends further thol the Applicont is not opposed to the Commissioner Lond Registrotion being directed to vocote the erroneous encumbronces from Lond comprised in Kyodondo Block l84 plot 43 but their grievonce is being condemned to poy domoges ond costs. 30

Counsel further conlends thol the Applicont proyed for domoges of UGX. 60,000,000 (Ugondo Shillings Sixiy Million only) but thot ihe Courl oworded UGX 140,000,000(Ugondo Shillings One Hundred Forly Million only).

# Arquments in reolv bv Counsel for the Respondent

Counsel orgued thot this Applicotion is premised on the discovery of new evidence. however, there is no discovery of o new motter or evidence in this

- application. That Miscellaneous Cause No. 044 of 2020 was heard and $\mathsf{S}$ determined on its merits on the 26^th day of February, 2021 where, the Applicant participated in the proceedings and a ruling was delivered based on the facts that are available on the Court record. - Counsel further argued that there are no new facts or evidence to show that the Applicant ever lodged or registered a mortgage on Land comprised in 10 Busiro Block 184 Plot 43 at Kababi and obtained a loan of UGX. 10,000,000 (Uganda Shillings Ten Million only) from the Applicant.

Counsel contended that the Applicant is liable to pay damages and that the award of general damages is at the discretion of Court as, was held in the case

of Robert Cuossens Vs Attorney General SCCA No. 08 of 1999. That it was 15 justiciable on the circumstances of this case, for the Court to award UGX 140,000,000 as the Applicant is liable.

## Arguments in rejoinder by Counsel for the Applicant

- Counsel reiterated their earlier submissions and argued further that the Applicant has produced the actual Mortgage Deed which, it lodged in respect 20 of Land comprised in Busiro Block 184 Plot 43 and that the Respondent has not produced any Mortgage Deed which, the Applicant lodged on Land comprised in Kyadondo Block 184 Plot 43 and that the Applicant is being condemned to pay damages and costs for a mistake it did not commit. - Decision 25

Section 82 of the Civil Procedure Act, Cap 71 and Order 46 Rule 1 and 3 of the Civil Procedure Rules, SI 71 will be reproduced hereunder for emphasis: -

Section 82 provides that:

## Any person considering himself or herself aggrieved— (Emphasis is mine)

(a) by a decree or order from which an appeal is allowed by this Act, but from 30 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 the order, and the court may make such order on the decree or order as it thinks fit.

Order 46 Rules (1) and (3) provides that: - $\mathsf{S}$

Application for review of judgment.

(1) 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 $10$ 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 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 15 decree passed or order made against him or her, may apply for a review of judgment to the Court which passed the decree or made the order. (Emphasis is mine)

3. Grant or dismissal of application.

(1) Where it appears to the court that there is not sufficient ground for a review, 20 it shall dismiss the application.

(2) Where the Court is of opinion that the application for review should be aranted, it shall grant it; except that no such application shall be granted on the around of discovery of new matter or evidence which the applicant alleges was

not within his or her knowledge, or could not be adduced by him or her when 25 the decree or order was passed or made without strict proof of the allegation. (Emphasis is mine)

Review of a Judgment or Order may be allowed on any of the grounds hereunder: -

- Discovery of new and important matter or evidence after the exercise $(i)$ 30 of due diligence by the Applicant or: - Some mistake or error apparent on the face of the record, and $(ii)$ - $(iii)$ Any other sufficient cause.

It is worth noting that a party who claims any of the grounds above for review, $\mathsf{S}$ should be an aggrieved person within the meaning of section 82 of the Civil Procedure Act Cap 71 and Order 46 Rule (1) of the Civil Procedure Rules SI 71-1. (See Mohamed Allibhai Vs W. E Bukenya Mukasa & Departed Asians Property Custodian Board S. C Civil Appeal No. 56 of 1996 on the definition of an agarieved person) 10

I am persuaded with the decision in Kinyara Sugar Limited Vs Hajji Kazimbiraine Mahmood & 3 others HC Misc Appl. No. 39 of 2018 (Arising from H. C. C. S No. 30 of 2017) relied on by Counsel for the Applicant which, cited with approval the case of Tullow Uganda Limited & Tullow Uganda Operations PTY Limited Vs Jackson Wabyona & Uganda Revenue Authority HC Misc Appl. No. 197 of 2017

where Madrama J. (as he then was) defined an aggrieved person as: "A person who has been injuriously affected in his rights or has suffered a legal arievance. The expression legal grievance was adopted from the case of Exparte Side Bothan in re Side Botham (1881)14 Ch. D 485 at 465

where James L. J held that:

"the words "person aggrieved" do not really mean a person who is disappointed of a benefit which he might have received if some other order had been made. A person aggrieved is a person who has suffered a grievance, a man against whom a decision has been pronounced, which has been an injury or grievance in respect of his property or otherwise."

In the instant case, the Applicant seeks for review on the ground of the 30 discovery of new and important evidence.

I have looked at the pleadings on record both in this application and in Misc. Cause No. 044 of 2020 and find that the record reveals that the Respondent herein through his Lawyers, wrote a letter to the Applicant on 16^th September, 35 2020 attached and marked Annexture 'A' to the affidavit in support of the application, demanding for the release of the said mortgage on the Respondent's title comprised in Kyadondo Block 184 Plot 43 situate at Nsasa, Wakiso district.

$\overline{20}$

- The Respondent, through his Counsel filed a cause on 2^nd October, 2020 and a $\mathsf{S}$ reply was filed for the Applicant herein on 10^th November, 2020. However, on 13^th October, 2020, the Applicant through its Legal Manager wrote to Ministry of Lands, Housing and Urban Development, as seen in Annexture 'B' attached to the affidavit in support of this application, requesting to be availed with a copy - of the Mortgage Deed if any. 10

The provision of the law under Rule (1) (b) of Order 46 above presupposes that, any person who considers himself or herself aggrieved by a decree or order from which no appeal is allowed, should have exercised due diligence prior to the discovery of new and important matter or evidence, to show that it was not within his or her knowledge or could not be produced by him or her at the time

15 when the decree was passed or the order made.

The term due diligence means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. (See Black's Law Dictionary 7^th Edition at pg.468)

In the given circumstances of this matter, it is evident that the Applicant did not reasonably, take the necessary steps to obtain the Mortgage Deed at the time when the Respondent brought to their attention the existence of an encumbrance on his title in September 2020, allegedly lodged by the Applicant until the Respondent filed a cause in October, 2020 and the Applicant

25 thereafter, decided to take action on 13^th October, 2021 as above.

On record, is a letter dated 11^th February, 2021, by M/s Muhumuza Kiiza the Applicant's Lawyers who, wrote to the Applicant Bank notifying them that they were able to obtain the Mortgage Deed executed on the 24^th May, 2007 as security between the Applicant Bank, a one Nakibuule Sarah with Kibalama

30 Yusuf.

The Applicant therefore, had the opportunity to inform the Court of the new matter or evidence before the ruling was delivered on 26^th February, 2021 but they chose not to do so.

In the result, I find that the Applicant did not exercise due diligence when, they 35 allegedly discovered new matter or evidence on 12^th February, 2021 and cannot claim that it was not within their knowledge when the order was made by this Court on 26^th February, 2021.

- I am unable to agree with the submission by Counsel for the Applicant that the $\mathsf{S}$ Applicant explained in detail, the steps it took to instruct their Lawyers to obtain a copy of the disputed Mortgage Deed from the Land office which, was only obtained on 12^th February, 2021 as attached and marked Annexture 'D' to the affidavit in support of this application, after the hearing of the cause. - The Applicant failed to discharge the evidential burden to the standard $10$ required under Rule 3 (2) of Order 46 of the Civil Procedure Rules SI 71-1 which, is strict proof of the allegation of the discovery of new matter or evidence that was not within their knowledge when the Decree or Order was passed or made. - Accordingly, the Applicant, cannot be seen to be aggrieved by the decision that was rendered by this Court, after the alleged discovery of new matter or 15 evidence by the Applicant.

The argument by Counsel for the Applicant that the Applicant's duty as a bank, is to lodge Mortgage Deeds for registration and that any error in registering an instrument under a wrong Block and Plot, is answerable by the Commissioner for

Land Registration whom, the Respondent chose not to make a party to Misc. 20 Cause No. 044 of 2020 is untenable.

In regard to damages, I am in agreement with the authority of Robert Cuossens Vs Attorney General SCCA No. 8 of 1999 cited by Counsel for the Respondent on the proposition of law that the award of general damages is at the discretion of Court; suffice to add that it is compensatory in nature on injuries or damages 25 that arise naturally in the normal course of events. (See Stroms Vs Hutchinson [1905] AC 515)

In the case of **Uganda Commercial Bank Vs Kigozi [2002] 1 EA 305** it was held that:

"In assessment of the quantum of damages, courts are mainly guided by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach or injury suffered."

It is also settled law, that review is a matter of discretion however, the 35 circumstances of each case should be considered. (see the case of Abdulla Jaffer Dewji Vs Ali Raza Mohamedali Sheriff Dewji [1958] EA 558)

⁵ Following the decisions obove, lfind lhoi this is o proper cose for this Court lo exercise its discretion ond exercise it judiciously to refuse to review its Orders in regord to generol domoges.

With regord 1o cosis, occording to section 27 (21 ot lhe Civil Procedure Acl Cop 71, costs follow the evenl unless for good reosons the Courl otherwise orders.

ldo not find ony good reoson lo deny the Respondent costs of lhis opplicoiion ond in the moin couse. 10

This Court finds thoi this opplicotion is devoid of merit ond is dismissed wilh costs.

Doted, signed ond delivered by emoil lo Counsel for the porties lhis 26rh doy of April,2022.

\. SUSAN AJKYo JUDGE