[2025] UGHCLD 55

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO.0273 OF 2025 (ARISING FROM MISCELLANEOUS APPLICATION NO.1055 OF 2024** *(ARISING FROM CIVIL APPEAL NO. 0154 OF 2019) (ARISING FROM CIVIL SUIT NO. 01237 OF 2015)*

**LUBEGA GEORGE :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**TWAHA AHMED SIRAJE ::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

#### *Introduction:*

- 1. This is an application by notice of motion brought under Section 82 of the Civil Procedure Act, Order 46 rules 1 & 8 Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) Court reviews its decision in Miscellaneous Application No. 1055 of 2024 against the Applicant as there are errors and mistakes apparent on the face of the record. - ii) The orders dismissing Civil Appeal No. 0154 of 2019 be set aside, the appeal be re-admitted and fresh scheduling dates for filling submissions be issued.

### *Applicants' Evidence;*

- 2. The grounds of the application are contained in the affidavit in support of the application deposed by **LUBEGA GEORGE** the Applicant and are briefly that: - i) That I was the unsuccessful party in Civil Suit No. 1237 of 2015 at the Chief Magistrate Court of Mengo and I appealed against the judgement and orders in the said suit and took steps towards prosecuting the said appeal. - ii) That Civil Appeal No. 154 of 2019 was dismissed on 31st August 2021 for want of prosecution without the lower Court record and proceedings being forwarded to the appellate Court even after the applicant requested for the same which is an error apparent on the record. - iii) That the lower Court took an excessive amount of time to send the proceedings and file to the appellate Court which significantly hindered my lawyers of Omongole & Co. Advocates from filing submissions for the appeal within time. - iv) That I promptly requested for the record and the delay is purely Court's error. That on 11th January 2024, the

appellate Court issued timelines to file submissions which was an error to issue timelines for disposal of the appeal before the lower court file was forwarded and proceedings availed to both Court and the lawyers.

- v) That the apparent error by Court cannot be visited on the applicant and I have been informed by my lawyers that it is the duty of the Court to request for the file from the lower Court and the duty of the lower Court to forward the same. - vi) That it was an error on the face of record and a mistake to determine the appeal without the lower Court file and proceedings thus this Court should review the orders dismissing MA No. 1055 of 2024, set aside the dismissal and reinstate the appeal to be heard in the interest of justice.

## *Respondent's evidence;*

- 3. The application is opposed to by an affidavit in reply deposed by **TWAHA AHMED SIRAJE,** the respondent which briefly states as below; - i) The Applicant filed the notice of appeal and memorandum of appeal in 2019 and went mute on the same until when Court gave timelines for the appeal to be heard and the applicant

never complied with the same thus it was dismissed for want of prosecution.

- ii) The Applicant requested for copies of the lower Court proceedings through a letter dated 15/11/19 and filed at Court on 9/12/19 but never took any further steps to ensure the same is availed to them with intent to frustrate me. - iii)The Applicant was negligent as he was aware of the day when the appeal came up for hearing but never bothered to update Court on the status of the record of proceedings from the lower Court with an intention to malice the respondent by filing unnecessary applications. - iv) That the Applicant is trying to manipulate and abuse Court process because the Civil Appeal No. 154 of 2019 was dismissed on 31st August 2021 for want of prosecution, the Applicant applied for reinstatement vide MA No. 1646 of 2021 which was granted and the applicant again reluctantly sat back for approximately two years and never took any steps to prosecute the reinstated appeal and it was again dismissed. - v) The Applicant filed MA No. 1055 of 2024 which was dismissed for lack of merit and the applicant is using these applications

as a delaying tactic to frustrate the execution by me an attack to arrest a legally binding Court decision.

- vi) The Applicant ought to have been vigilant enough to follow up since it was him who filed the appeal, he cannot later turn around and blame Court for his negligence or his advocate's unseriousness. - vii) That the Applicant was not diligent to follow up on the record of proceedings thus there was no error and mistake apparent on the face of the Court record, the applicant and his lawyers are misguiding Court on the laws or interpretation of an error on Court record. - viii) That the Applicant does not have any sufficient reasons and proper grounds for this Honourable Court to review the orders dismissing Miscellaneous Application No. 1055 of 2024 and reinstate the appeal.

### *Representation;*

4. The applicant was represented by M/S Omongole & Co. Advocates whereas the respondent was represented by M/S Kratos Advocates. Only the respondent filed written submissions which this court has considered in the determination of this application.

## *Issues for determination;*

- **i) Whether there are sufficient grounds to warrant the review and setting aside of the ruling and orders in Miscellaneous Application No. 1055 of 2024?** - **ii) Whether Civil Appeal No. 0154 of 2019 can be readmitted and fresh scheduling dates for filing submissions be issued?**

### *Resolution and determination of the issues;*

- i) Whether there are sufficient grounds to warrant the review and setting aside of the ruling and orders in Miscellaneous Application No. 1055 of 2024? - 5. Counsel for the Respondent relied on the provisions of Section 82 of the Civil Procedure Act Cap 282 and Order 46(1) of the Civil Procedure Rules and submitted that for Court to review its ruling there has to be a mistake or error apparent on the face of the record, a discovery of new and important evidence which after the exercise of due diligence was not within the Applicant's knowledge or sufficient reason has been produced by the Applicant which he/she had not provided.

- 6. Counsel further relied on the authorities of FX Mubuuke v UEB HCMA No. 98 of 2005 and that of Edison Kanyabwera v Pastori Tumwebaze SCCA No. 6 of 2004 where it was held that in order an error to 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. It includes errors of both facts and the law. - 7. Counsel also relied on the case of Watwero Enterprises Limited v Board of governors of Lukame Secondary School and Anor HCMA No. 08 of 2023 where Court stated that an error is one apparent on the face of the record which is based on clear ignorance or disregard of the provisions of the law. It is a patent error and not a mere wrong decision. Conclusions arrived at on appreciation of the evidence cannot therefore be classified as error apparent on the face of the record. That the Applicant does not state the error that warrants the review of the ruling and orders delivered in MA No. 1055 of 2024.

*Analysis by Court*

- 8. The appellant lodged Civil Appeal No. 154 of 2019 on 5th December 2019 and wrote a letter requesting for the record of proceedings in the lower Court on 15th November 2019. The applicant filed applications for stay of execution which were granted. On 31st August 2021, the appeal was dismissed for want of prosecution. - 9. The Applicant filed MA No. 1646 of 2021 for reinstatement of the said appeal and the same was reinstated. The applicant wrote two letters to the Judge, dated 28th October 2022 and 5th October 2023 on different occasions requesting for hearing dates for the appeal, both parties appeared before Court on 11th January, 2024 and Court issued directions to the parties as follows, the appellant to file submissions by 1st/2/2024, the Respondent to file by 22nd/2/2024 and the rejoinder by 29th/2/2024 and the judgment slated for 28th/3/2024. - 10. On 28th/3/2024, none of the parties had complied with Court's directions thus the matter was dismissed for want of prosecution for the second time. The applicant filed MA. No. 1055 of 2024 seeking to reinstate the dismissed appeal and for Court to issue new directions. The said application was dismissed as Court found the applicant guilty of dilatory conduct in as much as the applicant stated that he had not obtained the record of proceedings since 2019, but he had not taken any serious steps towards prosecuting the appeal. The applicant now seeks to review the dismissal of the said application stating that there is an error apparent on the face of the record, that the appellate Court issuing directions/schedules to dispose in the appeal without the lower Court file and that the said mistake should not be visited on the applicant.

11. Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules permit review where there is a mistake or error apparent on the face of record, discovery of new and important evidence or any other sufficient reason. *(See; FX Mubuuke v*

## *UEB HCMA No. 98 of 2005)*

12. The Applicant argues that the dismissal of the appeal and issuance of timelines occurred without the lower Court file having been forwarded to the appellate Court which he claims is an error apparent on the face of the record. Court in the case of **Edison Kanyabwera v Pastori Tumwebaze SCCA No. 6 of 2004** held that in order for an error to 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. The error may be one of fact but not limited to matters of fact and includes also error of law.

- 13. A cursory perusal of the Court record reveals the following, on 11th/3/2020, the Deputy Registrar wrote to the Chief Magistrate of Mengo requesting for the lower Court file to be forwarded but the said request was not heeded to. The Applicant did not take any proactive steps to obtain the record of appeal thus the appeal was dismissed on 31st/8/2021 but later reinstated vide MA No. 1646 of 2021. The Deputy Registrar on 2nd/2/2023 wrote another letter to the Chief Magistrate of Mengo requesting for the lower Court file. - 14. The record of proceedings on the said file was ready by 19th/2/2024 and on the same date, the Chief Magistrate wrote a letter forwarding the file to the High Court which was only received on 1st March 2024. The parties appeared in Court on 11th January, 2024 wherein Court gave schedules to both parties to file their respective submissions and at the time, the applicant and his lawyers who were present in court had

knowledge of the lack of the lower court record but still went ahead and accepted the schedules from Court.

- 15. The instant application rests chiefly on the fact that the lower court file had not yet been forwarded and the record of proceedings not being ready thus the Applicant's lawyers could not file their submissions. The applicant's lawyer as an officer of Court ought to have informed Court on 11th January 2024 when the schedules were given that he had not obtained the record of proceedings from the lower Court and that he could not comply to the said schedules. - 16. Be that as it may, if Counsel and the Applicant were indeed actively following up the certified record of proceedings, they would have obtained the same as soon as it was available by 19th February 2024 and had a lot of time to communicate to Court from 19th February 2024 to 28th March 2024 when the appeal was dismissed for the second time. - 17. A prudent advocate in the circumstances would file the submissions and accompany the same with a letter explaining the delay or none the less, Counsel would have informed Court of the un availed record of proceedings and sought an adjournment but accepted directions and defaulted on them.

- 18. None the less, the applicant and his lawyer only had to follow up the record of proceedings and not movement of the lower Court file to the appellate Court as its purely the role of the Registrar and the file in question was at the appellate Court on 1st March 2024 before the date on which the judgement was meant to be delivered which was 28th March 2024. - 19. Section 80 of the Civil Procedure Act imposes a duty on this Court to re appraise the evidence presented to the trial Court, subject it to a fresh and exhaustive scrutiny and come to its own conclusion as it was enunciated in the case of *Narcensio Begumisa & Others versus Eric Tibebaga Supreme Court Civil Appeal No. 17/ 2002* and thus the appeal could not be disposed of by the applicant without the lower Court file. - 20. All the arguments fronted by the Applicant are purely procedural matters which require interpretation and context, there is no self-evident mistake apparent on the face of the record as alleged. The applicant and his lawyers knew that the lower Court record was not ready and had the duty to actively follow up and update the Court especially after the reinstatement in 2021.

- 21. The delay in prosecuting the appeal after it was reinstated reflects lack of diligence and the arguments now raised are not new and were already considered in MA No. 1055 of 2024, the applicant is essentially seeking a second bite at the cherry without satisfying the strict requirements for review. - 22. This Court is not satisfied that the grounds raised disclose any error apparent on the record, discovery of new evidence or other sufficient reason that would justify review under the law. - 23. Putting into consideration the history of the matter, the parties have been in Court since 2015, judgement was delivered in favour of the Respondent and the Applicant lodged an appeal which he has failed to diligently prosecute over time since 2019 to date. - 24. Courts have always emphasized that there must be an end to litigation. Instead of prosecuting the appeal, the Applicant resorted to filing numerous applications to frustrate the Respondent. - 25. This Court has the power and is imposed with the duty to act according to the law, justice, equity and good conscience. The provisions of Order 43 were designed to enforce discipline in the conduct of cases as well as render justice where it is reasonably

possible and in the circumstances, it is unjust for the Applicant to keep the Respondent in Court since 2015 without taking reasonable steps to adjudicate his matter.

- 26. As earlier noted in MA No. 1055 of 2024, the applicant provides no explanation for the inexcusable delay and dilatory conduct on his part and his advocates. - 27. In view of the foregoing, this Court finds no reason to resolve issue two as the applicant has failed to establish any sufficient grounds to warrant the review and setting aside of the ruling and orders in MA No. 1055 of 2024 thus no basis to reinstate the appeal. - 28. Accordingly, the application is hereby dismissed with costs to the Respondent.

## **I SO ORDER.**

## **NALUZZE AISHA BATALA Ag. JUDGE 09/05/2025 Delivered Electronically via ECCMIS on the 09th day of May 2025.**