[2024] UGCommC 103

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

# **MISCELLANEOUS APPLICATION NO. 0619 OF 2024** ARISING FROM CIVIL SUIT NO. 0462 OF 2020

#### 1. HAKAN TURKMEN

## 2. GREEN AFRICA RECYCLING LTD ::::::::::::::::::::::::::::::::::: **VERSUS**

<table>

PETUA KATEEBA :::::::::::::::::::::::::::::::::::

### (Before: Hon. Justice Patricia Mutesi)

### **RULING**

#### Background

This application is brought under **Sections 14** and **33** of the **Judicature Act Cap** 13, Section 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 S. I. 71-1 seeking orders that:

- 1. The order dismissing the Applicants' counterclaim in Civil Suit No. 0462 of 2020 on $8^th$ December 2023 be set aside. - 2. The counterclaim in Civil Suit No. 0462 of 2020 be reinstated and heard on its merits. - 3. The Judgment and Decree in Civil Suit No. 0462 of 2020 be reviewed and set aside. - 4. Civil Suit No. 0462 of 2020 be reopened and leave of Court be granted to the Applicants to adduce newly-discovered and important evidence in support of their defence. - 5. Costs of the application be provided for.

Briefly, the grounds of this application are that:

1. In its 8^th December 2023 and 29^th January 2024 Judgment and Decree, respectively, in Civil Suit No. 0462 of 2020 (hereinafter "the main suit"), this Court condemned the Applicants with an eviction order and orders for payment of rent arrears, general damages and costs of the suit.

- 2. The Applicants' former lawyers failed to gather and adduce some critical evidence supporting their defence and counterclaim. This error/mistake is apparent on the record and features prominently in the Judgment. - 3. The Applicants have now discovered some new and important evidence that is likely to have a huge bearing on their case in the main suit. - 4. The 2^nd Applicant has employed new lawyers (M/S Leadman Advocates) who are ready to prosecute the counterclaim to its logical conclusion once it is reinstated. - 5. The Applicants' former lawyers' errors/mistakes should not be visited on the Applicants. - 6. If the impugned Judgment and Decree are not reviewed, the Applicants will have been condemned unheard and the 2^nd Applicant's machinery will be unjustifiably sold in execution for mistakes, errors and omissions committed by her former counsel. - 7. It is just, fair and equitable that this application is allowed.

The application is supported by an affidavit sworn by Mr. Ssekanjako Godfrey Kyaterekera, the 2^nd Applicant's General Manager. Therein he stated that the dismissal of the counterclaim in the main suit was caused by the negligence and unprofessional conduct of the Applicants' former counsel. Further that the Applicants have employed new lawyers (M/S Leadman Advocates) who are ready to prosecute the counterclaim to its logical conclusion. He asserted that the counterclaim has high chances of success in light of the new and important evidence in its support discovered after the trial, to wit, a Police report dated 13^th December 2021, a contract dated 8^th May 2019 and a valuation for loss incurred after the closure of the Applicant's factory dated 11^th October 2023.

Mr. Ssekanjako further stated that at the trial, the Applicants' former lawyers omitted to submit evidence on how the COVID 19 pandemic actually frustrated the tenancy agreement between the Applicants and the Respondent, to gather and adduce evidence as to the state of the 1^st Applicant's factory after the time it was closed by the Respondent and to gather and adduce evidence on the effects of that closure on the factory. He averred that the Applicant has since obtained new and important to support the case, namely, the first Presidential guidelines on tentative measure to combat COVID 19 dated 18^th March 2020, and the Report on the state of the building dated 16^th September 2013. Mr.

Ssekanjako asked the Court not to visit the errors, mistakes and omissions of the Applicant's former lawyers on the Applicants, as this would cause injustice.

The Respondent filed an affidavit in reply opposing the application. Therein she stated that by failing to call witnesses to substantiate their counterclaim, the Applicants cannot fault their former lawyers for failure to prosecute the matter. She pointed out that a perusal of the court record shows that the Applicants actually used more than 6 law firms in the proceedings in the main suit and yet they have failed to demonstrate which law firm(s) mishandled their case. She added that in any case, such unprofessional conduct is a disciplinary matter to be handled by the Law Council against the individual law firm or advocate found culpable, and not in review proceedings in this Court.

The Respondent further stated that the evidence said to be new and important is not actually new since the Applicants had ample opportunity to present it at the trial yet they elected not to do so. She maintained that failure to adduce evidence cannot be equated to an error on Court record. She concluded that, once a matter is conclusively determined by the Court, the matter is presumed to have been heard on merit and the Court cannot review and set aside its judgment to allow the aggrieved party to adduce more evidence.

The Applicants filed an affidavit in rejoinder to the affidavit in reply also sworn by Ssekanjako Godfrey Kyaterekera. He reiterated the contents of the affidavit in support of the application.

### **Issue arising**

Whether this Honourable Court should review its Judgment and Decree in Civil Suit No. 0462 of 2020.

### **Representation and hearing**

At the hearing, the Applicants were represented by Mr. Stephen Turyatunga Ikamukuba of M/S Leadman Advocates while the Respondent was represented by Dr. Asa Mugenyi of M/S Mugenyi & Co. Advocates. Both counsel filed written submissions to argue the application which I have considered, along with the pleadings and the laws and authorities cited.

### Determination of the issue

$\mathbf{3}$

## Whether this Honourable Court should review its Judgment and Decree in Civil Suit No. 0462 of 2020.

This Court's power to review its decisions is prescribed by **Section 82** of the **Civil Procedure Act Cap 71.** The Court cannot review and alter its judgments, rulings, decrees or orders at will. The need for finality of litigation enjoins the Court to only interrupt its previous decisions over a dispute for specific reasons as set out in law. Under Order 46 rule 1(1) of the Civil Procedure Rules S. I. 71-1, there are only 3 reasons for which the Court can review its previous decision in a case. These grounds are:

- 1. The discovery of new and important evidence which, after exercise of due diligence, was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - 2. A mistake or error apparent on the face of the record. - 3. Any other sufficient reason.

In this application, the Applicants have alleged that there are mistakes and errors apparent on the face of the record in the main suit. They have claimed that, since the trial in the main suit, they have discovered new and important evidence which was not available to them then. Finally, they have averred that allowing this application will serve the interests of justice and fairness.

It is trite law that no error can be said to be apparent on the face of the record so as to justify review, if it is not manifest or self-evident and, instead, requires an examination or an argument to establish it. Additionally, it is settled that a misdirection by a judicial officer on a matter of law cannot be said to be an error apparent on the face of the record. This position was well-summarised by the Supreme Court of Uganda in Edison Kanyabwera V Pastori Tumwebaze, SCCA No. 6 of 2004 when it held that

"... In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no Court would permit such an error to *remain on record.*" Emphasis mine.

In this application, the Applicants have alleged that their former lawyers made strategic errors and mistakes in failing to gather and adduce critical evidence relevant to their defence and counterclaim. In his supporting affidavit, Mr. Ssekanjako said that these errors feature prominently in the Judgment as they were provided as the reason for dismissing the counterclaim.

In Ojijo Pascal V Eseza Catherine Byakika, HCMA No. 1028 of 2020, this Court clarified that:

"An error which is not self-evident and has to be detected by a process of reasoning, can hardly be an error apparent on the face of the record justifying the court to exercise its powers of review under this Order and rule. In exercise of the jurisdiction under this provision, it is not permissible for an erroneous decision to be reheard and corrected. An application for review, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the Court." Emphasis mine.

The Applicants' belief that an error or mistake on the part of their counsel in the course of the trial can constitute a ground for review of the Judgment and Decree in the main suit is grossly misconceived. An error on the part of the parties to litigation, however apparent and self-evident on the face of the court record, cannot constitute a ground for review. The errors anticipated by Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules are errors on the part of the Court.

In any case, even if it was true that the Applicants' former counsel mishandled their case at the trial by failing to gather and adduce evidence in support of the defence and counterclaim, such an error or mistake would not be apparent on the face of the record. To discover such an error, the Court would have to look at the evidence which the said former counsel failed to gather and adduce, consider its weight and cogency in view of the issues in the main suit and then confirm that that evidence should indeed have been presented at the trial. This drawn-out reasoning and analysis of evidence would necessitate the Court to revisit the merits of the Judgment and Decree and reassess the significance of all the evidence that was adduced and that which is said to have been freshly discovered after the Judgment was delivered. Such analysis would go to the

merits of the Judgment yet review proceedings are only intended to bring out irregularities and flaws, on the part of the Court, in the process leading up to the Judgment.

The Applicants' claim that they have since found new and important evidence which is relevant to their defence and counterclaim in the main suit also lacks any merit. There is an expectation imposed upon litigating parties to place the whole of their cases before the court at the time of the initial hearing. Except in very special circumstances, an unsuccessful litigant cannot be allowed to come forward with new evidence which was available prior to judgment, when he or she was content to have the court deliver the judgment based on the evidence produced at the trial in which that litigant actively participated. Since review proceedings cannot be used to remedy tactical errors or oversights by parties at trial, the unavailability of the "new" evidence must not have resulted from the lack of due diligence on the part of the applicants or their counsel. (See Ojijo Pascal V Eseza Catherine Byakika (*supra*)).

This application is, in and of itself, an acknowledgment that the said new and important evidence was discoverable before and at the trial and that the Applicants' former lawyers did not gather it and adduce it in Court. The new evidence is said to be a Police report dated 13^th December 2021, a contract dated 8^th May 2019 and a valuation for loss incurred due to closure of the factory dated 11^th October 2023. This evidence is not new at all since, as the Applicants have admitted, the contents of those documents were discoverable at the time when the main suit was heard.

The Applicants' admission that the "new" evidence could have been gathered and adduced at trial by their former counsel significantly taints their claims in this matter. The Applicant's former counsel had full instructions to prosecute the defence and counterclaim. In the exercise of those instructions, they were obligated to gather or to advise the Applicants to gather all relevant evidence and to adduce that evidence at the trial. If those advocates did not do their job well and they missed out on obtaining and bringing some key evidence to the Court yet that evidence was relevant to the Applicant's case, that does not make that evidence 'new' simply because more diligent lawyers have discovered it after the delivery of the Judgment. It only implies that the former advocates did not execute their instructions diligently.

Even though the Police Investigation Report, the Contract and the Valuation Report are new and fresh to the Applicants' current lawyers, their contents are not exactly new to their former lawyers. Worse still, they are not new to the Applicants themselves. The Applicants have not asserted or even proved that they took the initiative to bring the contents of these documents to their former lawyers' attention before or at the trial. The Applicants' former lawyers might have been unprofessional and negligent, but there was also no vigilance or diligence on the Applicants' part in providing the said documents to their former lawyers so that the same can be adduced.

It should be recalled that the main suit was decided by this Court without a single witness statement being filed on the record on behalf of the Applicants. Even if, for argument's sake, this Court was to indulge in the possibility that the said newly-found documents were not discoverable before or at the trial, that would still not explain why the Applicants disobeyed the several directives of this Court requiring them to file witness statements.

If the documentary evidence was truly not discoverable at the time, there is no reason whatsoever why the Applicants did not simply bring their oral evidence through witness statements to support their defence and counterclaim. To this end, it appears to me that this application is a gross abuse and mockery of the court process because litigants who earlier disrespected the Court's directions to tender their oral testimonies in support of their case are now back, after the losing the case, asking the Court to undo its decision and to allow them submit more documents in support of their case.

Although the Applicants presented this application as a cry for help against an advocate who failed them, it is clear that the Applicants also failed this Court when they ignored its directives to adduce their oral testimonies in support of their defence and counterclaim. The Applicants are guilty of dilatory conduct and negligence of their own in failing to follow up the main suit with this Court and with their former advocates. Throughout the hearing of the main suit, the 1^st Applicant never physically appeared before the Court at any one time when the case was called on. Mr. Ssekanjako, the 2^nd Applicant's General Manager, also only appeared in this Application, but he never appeared in Court at any one time during the pendency of the main suit. It is a settled position of the law that a litigant has a duty to follow up and inquire from his counsel about the

status of his case (See Kananura Andrew Kansiime V Richard Henry Kaijuka, SC Civil Reference No. 15 of 2016).

The alleged unprofessional conduct of the Applicants' former lawyers, through tactical flaws and oversights in not gathering and adducing some key evidence in Court, can best be addressed by the Law Council as a disciplinary matter, but it cannot justify the review and setting aside of the Judgment and Decree of the Court, especially when the Applicants also failed to do their part in the proper prosecution of their defence and counterclaim. For these reasons, the Applicants' pleas that the errors of their former counsel should not be visited on them are misconceived and irrelevant.

While the general attitude of the courts has always been that mistakes of counsel cannot be visited on litigants, the courts have also always bound litigants with the consequences of those mistakes if those litigants are also guilty of dilatory or negligent conduct. The claim of mistake of counsel is not a magic wand entitling a litigant to all manner of relief as he or she wishes. When an indolent litigant shows up with a new lawyer after delivery of the judgment against him, the Court cannot simply roll out the red carpet for him and accommodate him.

The inalienable right to a fair hearing guaranteed in **Articles 28** and **44(c)** of the **Constitution of the Republic of Uganda, 1995** only enjoins this Court to give litigants a fair opportunity to be heard and to present their cases. If such litigants decide to misuse or not to use that opportunity at all and they end up losing their cases, they only have themselves to blame. They cannot cry foul when the subsequent court decrees and orders are executed against them.

I am convinced that allowing this application would not serve the interests of justice, fairness or equity in any way. This is because there is no error apparent on the face of the record of the Judgment and Decree in the main suit. There is also no new and important evidence for the Applicants to present if the Judgment and Decree are set aside. Allowing this application, only to throw the Respondent back into the rigour of another trial against the Applicant's new lawyers yet she diligently prosecuted her case against the Applicants' former lawyers, would be manifestly unfair to the Respondent.

The Applicants had their chance to present all the evidence in support of their defence and counterclaim but they did not use it well. This Court will not assist them to rekindle an old dispute which was already settled. If the Applicant's new counsel, who came in at the stage when the Decree in the main suit was being executed, have discovered that some key evidence was not gathered and adduced at the trial by the Applicants' former lawyers, their solution does not lie in trying to have the Judgment and Decree set aside. In my considered view, any grievances with the merits of the Judgment and Decree in the main suit can best be handled in appeal by the Court of Appeal whose Rules prescribe the procedure by which new evidence can be admitted and considered before disposing of an appeal.

Consequently, this application fails and I make the following orders:

- Ĭ. This application is hereby dismissed. - İi. Misc. Application No. 621 of 2024 and Misc. Application No. 622 of 2024 which all arose from this application are overtaken by events and accordingly, dismissed with no order as to costs. - III. Costs of this application are awarded to the Respondent.

atreabentes

Patricia Mutesi

**JUDGE**

$(03/05/2024)$