[2020] UGHCLD 96

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

#### MISCELLANEOUS APPLICATION NO 1250 OF 2019

## ARISING FROM CIVIL SUIT NO. 415 OF 2017

### 10

#### KAMPALA DISABLED TRADERS

## BUSINESS ASSOCIATION CO. LTD :::::::::::::::::::::::::::::: APPLICANT

#### **VERSUS**

# 1. KAMPALA DISTRICT UNION OF PEOPLE WITH **DISABILITIES CO. LTD**

2. KAMPALA CAPITAL CITY AUTHORITY ::: RESPONDENTS

## **BEFORE: HON. JUSTICE DR. FLAVIAN ZEIJA**

#### **RULING**

The applicant herein brought the instant application under Section 20 33 of the Judicature Act Cap 13, Section 82 and 98 Civil Procedure Act Cap 71 and Order. 46 r 1(b) and Order 51 r. 6 Civil Procedure Rules SI 71-1 seeking this court to review it's judgment and decree in CS-415-2017; to set aside the said judgment and decree and for the applicant to be joined as a party to the main suit. In the 25 alternative and without prejudice to the foregoing that the name KAMPALA DISTRICT UNION OF PEOPLE WITH DISABILITIES LTD in the judgment be substituted with the name KAMPALA DISABLED TRADERS BUSINESS ASSOCIATION LTD. Additionally, that the 2^nd

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respondent issues a sublease in the name of the applicant and costs 30 be provided for.

The application is supported by the affidavit of the applicant's trustee a one ACAN JOYCE OKENY and sets out the grounds of the application. Both the respondents filed affidavits in reply opposing the application which are on record. Written submissions of both parties are also on record. The applicant was represented by $M/s$ S. K. Kiiza & Co. Advocates, the 1^st respondent was represented by M/s Shonubi, Musoke & Co. Advocates and the 2^nd respondent was represented by the directorate of legal affairs.

In a bid to exhaustively determine this application I find it imperative 40 to appreciate the background of this matter. The 1^st respondent sued the $2^{nd}$ respondent vide <u>CS-0451-2015</u> seeking a declaration that it was entitled to have the sublease on property comprised in Leasehold Register Volume 3854 Folio 20 Plot 7A at Namirembe Road (suit land) renewed by the 2^nd respondent and an order directing the 2^nd 45 respondent to extend the sublease to a full term of 49 years. The matter was heard and judgment was entered in favor of the 1st respondent. Aggrieved by that decision the $2^{nd}$ respondent appealed to the Court of Appeal. Before the appeal was concluded the applicant herein brought the instant application seeking to review the 50 judgment in the main suit on the grounds stated hereinabove. At the commencement of the hearing of the application counsel for the respondents raised a preliminary objection to the effect that given the pendency of the appeal, the applicants are, by the operation of Section 82 CPA and Order 46 rule 1 CPR precluded from bringing the 55 instant application for review. Further that the parties to the appeal

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had already entered into a partial consent in the Court of Appeal and the only outstanding issue left was on damages. In response Counsel for the applicant submitted that the instant application is filed by a party, who though was not party to CS-415-2017, is an aggrieved party and as such was empowered by Section 82 CPA and Order 46 rule 1(2) CPR to apply for a review even when the decision sought to be reviewed has been appealed against. The trial judge overruled the objection and held, rightfully so, that there was nothing to show that there is a ground of appeal common to the applicant and the appellant for this application to fall within the exception under Order 46 rule $1(2)$ . The application was set for determination and both parties were directed to file written submission which are on record.

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The applicant's case as can be gathered from the affidavit in support of the application and the submissions on record, is that in the year 70 1989 people with disabilities formed an association known as Kampala Disabled Business Association and the same was registered as a business name and carried on business till 2007. Through the same business name, Kampala Disabled Business Association lobbied Kampala City Council for allocation of land in the City Center 75 to enable them put up an income generating project for the people with disabilities. The council allocated land at Plot 11 Lumum Street which was later reallocated to another person. On the 14^th November 2007, upon advise from it's lawyers, the disabled persons incorporated an entity known as Kampala Disabled Traders Business 80 Association Company Ltd a company limited by guarantee.

The disabled persons petitioned the president in 2005 over the reallocation of Plot 11 Lumum Street and after a series of

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communication, the Permanent Secretary of the Ministry of Local Government wrote to the Acting Town Clerk Kampala City Council indicating that the name Kampala Disabled Traders Business Association be put in the land title. The letter was forwarded to Kampala City Council which in response held an ordinary council meeting on the $13$ ^th September 2007 and under minute C.8/59/2007 resolved to sublease 0.15 hectares of land in respect of Plot 7A 90 Namirembe Road (suit land) to the Kampala District Union of Persons with Disabilities (^1st respondent). The applicant contends that this was a great error since by the time the council sat and made a resolution to allocate the suit land the $1^st$ respondent had not been incorporated as it was only incorporated on the $2^{nd}$ May 2008. 95 Further that the 1^st respondent has never been in physical occupation of the suit land and it tried to forcefully take possession of the same by a hoarding permit which was eventually revoked by the $2^{nd}$ respondent. That upon expiry of its sublease the 1^st respondent applied for its renewal which the $2^nd$ respondent declined 100 due to the physical possession of the suit land by the applicant. It is then that the $1^{st}$ respondent filed CS-415-2017 compelling the $2^{nd}$ respondent to renew the sublease to a full term of 49 years. Judgment was entered in the 1^st respondent's favor which the applicant now seek to review. 105

The respondents on the other hand allege that the president's letter that the applicant relies on was generally in reference to people with disabilities and the property to be allocated was Plot 11 Lumum Street and not the suit land. In their submissions Counsel for the 1^st respondent stated that the current application was incompetent

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before this court as the decision the applicant seeks to review has already been determined by the court of appeal. That the remedy left for the applicant is to either apply to be joined as parties on the remaining ground of damages in the court of appeal or apply to review the consent judgment that has already been entered. Counsel citing 115 the case of Muwema, Mugerwa & Co. Advocates Vs. Shell Uganda Limited & 10 Ors CA-018-2011 submitted that this court has no jurisdiction to determine on the rights pertaining the suit land since the court of appeal has pronounced itself on the issues of the proprietorship of the same in CA-245-2017. Counsel further 120 submitted that Order 46(2) CPR allows an application for review by a party who is not party to an appeal even when an appeal has been preferred where the ground of appeal is not common to that of review. That in the instant case the applicant seeks to review the judgment on ground that they are the "true" owners of the suit property yet on 125 appeal the $2^{nd}$ respondent sought to challenge the finding of the court regarding the ownership of the suit property which court had held to be owned by the 1^st respondent. Counsel stated that these issues are similar and hence the matter should not be subject of review. Further counsel for the $1^{st}$ respondent submitted that the applicant is not an 130 aggrieved person as defined under the law and as such has no locus to bring the application. Counsel stated that under paragraph 11 of the applicant's affidavit in support, the deponent, Achan Joyce Okeny, states that the suit land was allocated to Kampala Disabled Business Association. That this was not the applicant. Further that 135 it was not true that the applicant was in possession of the suit land as the same is in possession of various persons who include members

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MARIANE

of the applicant and not the applicant itself and being in possession does not amount to an interest. Counsel citing the case of **Kampala**

Bukenya Vs Edith Nakandi & Umar Katongole MA-0775-2017 140 submitted that the applicant was fully aware of CS-415-2015 and can not claim to be an aggrieved party since the said Acen Joyce(*deponent*) attended the court proceedings through the hearing to the pronouncement of court and the applicant did not bother to apply to be added as parties. Counsel further submitted that there is 145 no error apparent on the face of the record to warrant the review of this court's judgment. Counsel stated that the letters that the applicant refers to and the grant of the land made refers to Plot 11 Lumum Street and not the suit land. That for one to understand how the suit land was awarded to the 1^st respondent it would require 150 serious examination and evidence to be adduced. Counsel prayed for the application to be dismissed with costs.

Counsel for the 2^nd respondents conceded with the submissions of the 1^st respondent and added that the applicant's assertions that the court labored under a mistake that the 1^st respondent legally existed 155 at the time the $2^{nd}$ respondent's predecessor held a council meeting to sublease the suit land is an argument that would require a long court process of litigation. Furthermore, that the existence or nonexistence of the 1^st respondent was not a matter for consideration but the court having established and agreed by both parties that a 160 sublease agreement had existed between the $1^{st}$ and $2^{nd}$ respondents and the same had expired, the issue before court undisputedly was whether the $1^{st}$ respondent was entitled to have its sublease renewed and extended and that was the issue upon which judgment was

$6$ - made. Counsel submitted that the applicant has failed to show that 165 there was an error apparent on the face of the record and the applicant failed to adduce any proof in form of a certificate of title, lease agreement or any other permission that it is in exclusive possession and use of the suit land. - I noted that from the submissions and affidavits of the respondents 170 they advanced the same objection they did in the court in CS-0415-2015 that is whether this application is properly before this court. Counsel for the respondents reiterated their earlier objection to the effect that since there is already a consent agreement in the Court of Appeal this court ceased to have jurisdiction to revise the decision in 175 the main suit. I find that this objection was properly addressed and determined by the trial judge in the main suit and the well advanced reasoning in the ruling is no record.

## Order 46 rule 1(2) provides;

"A party who is not appealing from a decree or order may apply 180 for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of appeal is common to the applicant and the appellant, or when, being respondent, he or she can present to the appellant court the case on which he or she applies for the review". 185

As already noted by the trial judge, by virtue of the above order, the applicant herein who was never a party in the main suit could properly bring the instant application regardless of the appeal in the court of appeal. The order provides for an exception that is where the ground of appeal is common to the applicant and the appellant. The

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ground of appeal in the court of appeal were premised on the fact that the trial judge erred to order the 2^nd respondent to renew the 1^st respondent's sub lease. However, the applicant's grievance seems to be on how the 1^st respondent acquired the lease in the first place to warrant the said renewal. These are two different issues are as such cannot be said to be common grounds to each other. In the circumstances therefore this application for review is properly before this court. That is settled.

The grounds for an application for review like the instant one have been outlined in numerous leading authorities to include; 200

- 1. That there is a mistake manifest or error apparent on the face of the record. - *2. That there is 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.* - *3. That any other sufficient reason exists.*

## See: FX Mubuuke Vs UEB High court Misc. Application No. 98 of 2005.

In the instant application, the applicant relied mainly on ground one, 210 that is; "a mistake or an error apparent on the face of the record."

Counsel for the applicant submitted that this Court rendered its judgment while laboring under a mistake that the 1^st respondent legally existed at the time the $2^nd$ respondent's predecessor held a council meeting to sublease the suit land whereas not. I found this

to be gist of the application. The applicant contends that at the time the town council sat and allocated the suit land to the 1^st respondent, it was not in existence. That at times the suit land was allocated to the applicant since 1986 and it has been in occupation, through its members ever since. Counsel stated that in the absence of exclusive possession there was no lease hence the 1^st respondent, who has not been in possession of the suit land, was given a mere paper.

The 1^st respondent on the other hand submitted that it had applied for and was lawfully granted a lease by the $2^nd$ respondent and subsequently renewed it after litigating in the main suit. As regards to being in possession counsel for the 1^st respondent submitted that while the lease was still subsisting there was a suit that was filed against the respondents and other parties. An injunction was issued staying the status quo of the property during the subsistence of the suit till its determination in 2015. The 2^nd respondent then declined to renew the lease on ground that there was a matter in court and an injunction stopping the renewal. It was through a series of these events that the 1^st respondent was not able to take possession of the suit land.

Considering the arguments of the parties and the pleadings I find 235 that what the applicant is seeking as an aggrieved party is for this court to look into decision which it allegedly passed under false representation. From the arguments of counsel for the 1st respondent, it is not disputed that the company was formed in 2007. As a matter of fact the appellant never seemed to address this issue. 240 What we have before this court is evidence that the applicant company was incorporated on 14^th November 2007 while the 1^st

respondent was incorporated on the $2^{nd}$ May 2008. The question that begs an answer is how the council sat in $13^{th}$ September 2007 and passed a resolution to allocate the suit land to a company that was 245 nonexistent? The applicant has produced before this court a wealth of evidence to prove its case. On record is a clear communication from ... stating that the suit land should be allocated to the applicant company. This was not done. While the issue of how the 1st respondent acquired the suit land was never previously addressed as 250 alleged by the respondents the plausible answer is because it was never an issue at the time. What court was dealing with was whether the $2^{nd}$ defendant was liable to renew the $1^{st}$ respondent's lease. In essence court was acting on the assumption that the $1^{\rm st}$ respondent was the legal owner of the suit land. There's overwhelming evidence 255 that the applicant who is still in occupation of the suit land was allocated the suit land. I noted that the same members who were in the applicant's company are the same members who were previously in the association. This court gave directions to both parties to provide information about their membership which the 1^st respondent did not adhere to. What can be discerned from the record is that there is self-evident error glaring on the record that this court shut it's eyes from. The history of the allocation of the land as evidenced by documentary evidence shows that the association was the first allocatee of the land. It is a stakeholder in the land that was subsequently allocated to the $1^{st}$ respondent.

An error apparent on the face of the record was defined in numerous leading cases including **Batuk K. Vyas Vs Surat Municipality AIR** (1953) Bom 133 as thus:

"No error can be said to be apparent on the face of the record if 270 it is not manifest or self evident and requires an examination or argument to establish it.............."

The error referred to in this instant is one that stares one right in the face and not one that has to be established through a long process of reasoning or on points where there may conceivably be two opinions. The fact that the $1^{st}$ respondent was allocated the suit land before it's existence is such an error. It is therefore pertinent that court determines the question of ownership before the $2^nd$ respondent can renew the lease. This calls for the issue of proprietorship to be subjected to a thorough legal process. This may be done in form of a suit.

The instant case therefore is a proper subject for proceedings for review.

Before I take leave of the matter I noted that there has been previous arbitration between the respondents, the applicants and other 285 parties in regard of the suit land. Somehow these arbitrations have never bore any fruits. This is quite unfortunate.

In the circumstances therefore this application is allowed with the following orders:

- (a) The judgement in Civil suit No 415 of 2017 is hereby set aside 290 and the suit be heard afresh - (b) The applicant should be joined as a party to the suit for the issue of ownership to be effectively determined - (c) costs to the application should be in the cause.


Date at Kampala this -day of <u>Ireller</u> 2020 295

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Flavian Zeija

Principal Judge