[2024] UGHC 605

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MBALE

# MISCELLANEOUS APPLICATION No.324 OF 2023

# (ARISING FROM MISCELLANEOUS APPLICATION No. 275 OF 2022)

# (ARISING FROM MISCELLANEOUS APPLICATION No. 249 OF 2020)

(ARISING FROM MISC. APPLICATIONS Nos. 160 & 159 of 2016)

(ARISING FROM CIVIL APPEAL NO. 010 OF 2009)

(ARISING FROM CIVIL SUIT NO 82 of 2004)

#### **MUMPI GEORGE**

(Administrator of the estate of the late Eriakim Mumpi) .................................... 10 **VERSUS**

NGESO TOM

MUYANDA JAMES

ASIRE MOSES...................................

BEFORE: HON. LADY JUSTICE MARGARET APINY 15

# **RULING**

## Introduction

$\mathsf{S}$

The Applicant brought this application under the provisions of sections 82 and 98 of the Civil Procedure Act, Cap 71 and order 46 rules 1 (1)(b) of the Civil Procedure Rules, S. I. 71-1 for orders that the order dismissing the preliminary objection in Misc. App. No. 275 of 2022 be reviewed and set aside and the preliminary objection upheld and that costs of the application be provided for.

The grounds upon which this application is premised are contained in the application and the affidavit in support of the application deponed by Mr. Mumpi George, the applicant but briefly are that;

- 1. The respondents filed Misc. App. No. 275 of 2022 and he (the applicant) filed an affidavit in reply. - 2. When Misc. App. No. 275 of 2022 came up for hearing, his lawyers, M/S Okalang Law Chambers raised a preliminary that the application was barred in law. - 3. The ruling on the preliminary objection was delivered and the same revealed that 30 the annexures to his affidavit in reply pertaining to Misc. App. No. 249 of 2020 had inadvertently been left out and on that ground, the preliminary objection was overruled. - 4. Upon receipt of the ruling on the preliminary objection he applied for a certified record of proceedings and the ruling for Misc. App. No 249 of 2020 which were duly availed to him. - 5. Through his lawyers, he filed Misc. App. No 249 of 2020 against the respondents and it was fixed for hearing on the 12^th March 2021.

6. The respondents through their lawyers, KM Advocates and Associates filed an affidavit in reply to Misc. App. No. 249 of 2020 on 28th April 2021 and he filed an affidavit in rejoinder.

- 7. The learned deputy registrar allowed the application for execution to ensue against the respondents. - 8. It is a mockery of justice for the respondents to allege that Misc. App. No. 249 of 2020 does not exist which application they evidently responded to.

- 9. Misc. App. No. 249 of 2020 is in court's custody and it is from the same application that Misc. App. No. 275 of 2022 arises and it is only just that the proceedings and ruling therein be considered and the preliminary objection be upheld. - 10. Ignoring Misc. App No. 249 of 2020 when it forms part of the court record does not serve the purpose of justice. - 11. It is in the interest of substantive justice that the ruling and orders in Misc. App. No. 275 of 2022 dismissing the preliminary objection be reviewed and set aside with this court upholding the preliminary objection.

The respondents opposed the application through an affidavit in reply deponed by Mr. Asire Moses, the 3^rd respondent, on his and on behalf of the 1^st and 2^nd respondents which 55 briefly are that he has been advised by his lawyers that the instant application is an abuse of court process and it should be dismissed with costs for failure to disclose sufficient cause for review.

He has been advised by his lawyers that the applicant's contentions are misplaced since court determined the preliminary objection on the basis of the available evidence on court 60 record. He has further been advised by his lawyers that a mistake or failure of a lawyer is not a ground for review. The 3^rd respondent averred that he has been advised by his lawyers that a party is supposed to put forward his or her entire case before the judge and any omission or inadvertence to include or add any evidence in support of his or her case is not a ground for review. 65

He contended that the applicant has not demonstrated that the alleged application No. 249 of 2020 could not be discovered by the exercise of due diligence. That the respondents were not parties to Civil Appeal No. 10 of 2009 and all subsequent applications thereunder. That he has been advised by his lawyers that the instant application is a disguised appeal which cannot be entertained by this honourable court as the same is functus officio.

He contended that the application is brought in bad faith and aimed at delaying the ongoing court proceedings in the main Application No. 275 of 2022 and that it is in the interest of justice that this application is dismissed with costs.

The applicant filed an affidavit in rejoinder in which he reiterated his earlier averments and 75 added that the respondents have never appealed against the ruling and orders in Misc. App. No. 249 of 2020 and that he has been informed by his lawyers' M/S Okalang Law chambers that Misc. App. No. 275 of 2022 is an illegality that cannot be condoned by court and court can review its decision by upholding the preliminary objection

#### **Representation** 80

At the hearing, Mr. Allan Ogoi held brief for Mr. Kevin Amojong who appeared for the applicant while Mr. Bwire Ronald appeared for the respondents.

By agreement of counsel and with leave of court, parties proceeded by way of written submissions which have been considered in the determination of this application.

**Submissions** 85

#### **Applicants' submission**

In his submission, counsel raised one issue for the determination of this court;

# 1. Whether the application discloses grounds for review.

Counsel laid out the law on review as provided under section 82 of the Civil Procedure Act and order 46 rule 1 (a) and (b) of the Civil Procedure Rules.

He cited the grounds for review as laid out in the authority of Faridah Omar vs Sheilah Agonzibwa & Anor, HC. Misc. App. No. 1034 of 2020, which are;

- $(i)$ That there is a mistake or manifest mistake or error apparent on the face of the record. - That there is discovery of new and important evidence which after exercise of $(ii)$ 95 due diligence was not within the applicant's knowledge or could not be

$A$ $A$ $i$

$\overline{4}$

produced by him or her at the time when the decree was passed, or the order made.

- That any other sufficient reason exists. (iii) - Counsel submitted that Misc. App. No. 249 of 2020 is before this court and that it is from 100 the same proceedings that Misc. App. No.249 of 2020 (Miscellaneous Application No. 275 of 2022) emanates. In his view, the above is sufficient reason for the proceedings to be considered and the ruling and orders dismissing the preliminary objection be reviewed with court upholding the preliminary objection. Counsel stated that the applicant has vide paragraph 4 of his affidavit in support attached a copy of the proceedings, ruling and order 105 in Misc. App. No. 249 of 2020. Counsel contended that the respondents had filed an affidavit in reply to Misc. App. No. 249 of 2020 on 28th April 2021 and the same is attached to the applicant's affidavit in support marked as D1. He therefore maintained that the said proceedings, ruling and orders in Misc. App No. 249 of 2020 are before court. - Counsel cited the cases of Mugo v Wanjiri [1970] EA 481 at page 483, Njagi v Munyiri 110 [1975] EA 179 at page 180 and Rosette Kizito v Administrator General and Others [ Supreme Court Civil Application No. 9 /86 reported in Kampala Law Report Volume 5 of 1993 at page 4] referred to in the case of Ssemanda Edward & 5 Others vs Nakku Tereza & Anor, H/C Misc. App. No. 166 of 2019, where it was held that sufficient reason must relate to the inability or failure to take the particular step in time. 115

Counsel further cited the case of Nicholas Roussos vs Gulam Hussein Habib Virani & Another, Civil Appeal No. 9 of 1993 (SC) (unreported) also referred to in the case of Ssemanda Edward & 5 Others vs Nakku Tereza & Anor (supra) in which the Supreme Court attempted to lay down some of the grounds or circumstances which may amount to sufficient cause to include, mistake by an advocate, ignorance of procedure by an unrepresented defendant and illness by a party.

$\mathsf{L}$

According to counsel, the annexures pertaining to Misc. App. No. 249 of 2020 were inadvertently not attached to the applicant's affidavit in reply in Misc. App. No. 275 of 2022,

$\mathcal{M}$

but the same formed part of the court record already and in his view, not taking into consideration the proceedings in Misc. App No. 249 of 2020 already before court, but inadvertently not attached to the affidavit in reply is sufficient reason for court to review its decision.

Counsel argued that Misc. App. No. 249 of 2020 was premised under sections 37 (1) (2) and 98 of the Civil Procedure Act and that the learned deputy registrar had ordered for execution to ensue against the respondents for intermeddling with the estate of the late Gashodo Gideon, which proceedings are before court. He argued further that the decision of the registrar was never appealed against as per order 50 rules 3 and 4 of the Civil Procedure Rules, only for the respondents to apply through Misc. App. No.275 of 2022 for the Judge to set aside execution against them, a jurisdiction the judge does not have since the application is not an appeal, clearly illegal before court and this court cannot sanction an illegality. Counsel cited the case of Makula International Vs Cardinal Nsubuga Wamala (1992) HCB.

Counsel submitted that whereas court agreed with the powers of the registrar to order for execution as against the respondents, the same court was constrained not to dismiss Misc. App. No. 275 of 2022 due to the absence of proceedings in Misc. App No. 249 of 140 2020 in which the deputy registrar ordered for execution to ensue against the respondents. He submitted that ignoring the said proceedings which are already on record would not serve the purpose of justice and concluded that the application discloses grounds for review and should be allowed and the preliminary objection upheld by dismissing Misc. App. No. 275 of 2022 which is an illegality before court. He prayed that costs be awarded 145 to the applicant.

#### **Respondent's Submission**

According to counsel for the respondents, review connotes a judicial re-examination of the case in order to rectify or correct grave and palpable errors committed by court in order to prevent a gross miscarriage of justice.

Regarding the discovery of a new and important matter of evidence, counsel submitted that parties are expected to place the whole of their case before court at the time of the initial hearing. He argued that a review cannot be sought merely for a fresh hearing or argument or correction of an erroneous view taken earlier. He argued that an unsuccessful litigant should not be allowed to come forward with new evidence available prior to judgment when he or she was content to have the trial judge deliver judgment based on the evidence produced at a trial in which that litigant actively participated.

Counsel contended that the process of review is not used to remedy tactical errors or oversights at trial and that the unavailability of the new evidence must not result from the lack of due diligence on the part of the applicant or their counsel. In his view, the party seeking review must show that he or she exercised the greatest care in adducing possible evidence and that the new evidence is relevant and if it had been given, it might possibly have altered the judgment. He relied on Muhairwe Caleb Katorogo& Anor v Grofin SGB (Uganda) Limited & Anor, Misc. App. No.0534 of 2021 to support his argument. Counsel maintained that the instant application does not meet the yardstick for review since firstly, 165 the proposed new evidence, that is, a copy of the proceedings and ruling in Misc. App. N0.249 of 2020 was available or could be obtained at the time of filing the affidavit in reply in Misc. App No. 275 of 2022, secondly, review is not used for the purpose of remedying tactical errors or oversights at trial, the unavailability of the new evidence must not result from the lack of due diligence on the part of the applicant or their counsel as admitted in paragraph 4 of the affidavit in support of the application and thirdly, that the applicant is playing tricks to be allowed to come forward with new evidence which was available prior to the ruling in Miscellaneous Application No. 275 of 2022.

In his submission on error apparent on the face of the record, counsel contended that it is one which is based on clear ignorance or disregard of the provisions of law. He relied on 175 the authority of Nyamogo & Nyamogo Advocates v Kago [2001] 2EA 173 in support of his assertion. Counsel contended that there is nothing to suggest that there is an error

$\overline{7}$ apparent on the face of the record to warrant review as proposed by the applicant. That the same is an abuse of court process and should be dismissed with costs.

In the alternative, he submitted that even if the said evidence was adduced at the time of 180 hearing and disposal of the point of law, it would not change the ruling of court as the ruling in Miscellaneous Application No. 249 of 2020 confirms that they as respondents did not participate in the hearing of Misc. App No. 249 and that apart from the order extracted by the applicant's lawyer, there is nothing in the ruling to suggest that court had ordered execution against the respondents. He prayed that court finds the application as a delaying 185 tactic in the disposal of Misc. App. No 275 of 2022 and dismiss the same with costs.

## Applicant's submissions in rejoinder

In his submission in rejoinder, counsel reiterated his earlier submissions save for the response to counsel for the respondents 'submission in the alternative to the effect that even if proceedings in Miscellaneous Application No. 249 of 2020 were considered, the 190 same would not have changed the decision of court. Counsel contended in rejoinder that the inadvertences of the applicant not attaching the ruling and orders in Misc. App. No. 249 of 2020 to his affidavit in reply to Misc. App. No. 275 of 2022 was sufficient reason for review.

He prayed that the application be allowed, the preliminary objection in Misc. App No. 275 195 of 2022 be upheld and costs granted to the applicant.

## Consideration of Court

Section 82 of the Civil Procedure Act provides;

"Any person considering himself or herself aggrieved-

- (a) by a decree or order from which an appeal is allowed by this Act, but from which 200 no appeal has been preferred; or - (b) by a decree or order from which no appeal is allowed by this Act,

## $K \Lambda$

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".

Likewise, Order 46 rule (1) provides;

"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 from the discovery of new and important matter of 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 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"

The considerations for grant of an application for review of a judgment, decree or order as set out under order 46 of the rules are vizly;

- İ. Discovery of new and important matter of evidence which, after the exercise of 220 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. - ii. On account of some mistake or error apparent on the face of the record; - For any other sufficient reason iii. - It is evident from the submissions of counsel for the applicant that heavy reliance was 225 placed on the ground of existence of sufficient reason. However, it is worth noting that the phrase "sufficient reason" has no definition assigned to it under the Act or the rules. In Collins Dictionary, https://www.collinsdictionary.com;definitions,sufficient reason denotes

the principle that nothing happens by pure chance but that an explanation must always be available. 230

In the instant case, the applicant's grievances as contained in paragraph 10 of his affidavit in support to the application are that the trial judge dismissed the preliminary objection raised by the applicant who is the respondent in Misc. App No. 275 of 2022 in disregard of proceedings in Misc. App. No.249 of 2020 which is before this court and from which Misc. App. No. 275 of 2022 arose.

According to the ruling on record it was stated thus;

"In the instant application, the applicants, however allege that Miscellaneous Application No. 249 of 2020 from which the preliminary objection raised by the Respondent is hinged is nonexistent and has never been filed by the Respondent and further that they were never part of the proceedings claimed under that application.

The Respondent in his Affidavit in reply under paragraphs 5 and 6 stated as follows:

- 5. That the late Gashodo Gideon being a Judgement-debtor to the late Eriakim *Mumpi's estate, I applied for execution to ensue as against the applicants who* were intermeddling with the estate of the late Gashodo Gideon vide Misc. App. No. 249 of 2020. A copy of the application, affidavit in reply and rejoinder are attached and marked A1, 2, 3. - 6. That court ordered for execution to proceed as against the Applicants who were intermeddling with the estate of the late Gashodo Gideon which order still stands to date. A copy of the order is attached and marked B. - The Respondent in his reply, makes reference to attachments, A1, 2, 3, said to be a copy 250 of the application, affidavit in reply and the rejoinder and B, being a copy of the order which are all documents pertaining to Miscellaneous Application No. 249 of 2020 and also the order from the registrar allowing for execution to ensue as against the Applicants.

I have taken time to peruse the court file and the Respondents' affidavit in reply to the application, and I have not found any attachments as stated in the affidavit in reply on court record to facilitate the determination of this matter.

In my view, the Respondent cannot simply allege that the said application existed without proving its existence to this court. According to Sections 101-103 of the Evidence Act, he who alleges a fact must prove the same. Failure to prove the existence of the application would then mean that the preliminary objection raised by the Respondents has no basis and it would not necessitate this court to delve into the registrar's powers to set aside its own orders let alone whether the Applicants should have appealed the alleged order".

According to counsel the applicant has vide paragraph 4 of his affidavit in support attached a copy of the proceedings, ruling and order in Misc. App. No. 249 of 2020. He argued that the respondents had filed an affidavit in reply to Misc. App. No. 249 of 2020 on 28th April 2021 and the same is attached to the applicant's affidavit in support marked as D1. He therefore maintained that the said proceedings, ruling and orders in Misc. App No. 249 of 2020 are before court and further that the inadvertences of the applicant not attaching the ruling and orders in Misc. App. No. 249 of 2020 to his affidavit in reply in Misc. App. No. 275 of 2022 was sufficient reason for review.

I have looked at the record and specifically paragraph 5 of the affidavit in support and not paragraph 4 as counsel for the applicant stated wherein the applicant averred thus,

5. That upon receipt of the ruling on the preliminary objection I applied for a certified record of proceedings and ruling in Misc. App. No. 249 of 2020 which were availed to me. A copy of the request letter, certified proceedings and ruling are attached and marked B1,2 and 3.

The respondents, applicants then had claimed that Miscellaneous Application No. 249 of 2020 from which the preliminary objection raised by the respondent, now the applicant is hinged is nonexistent and the same has never been filed and that they were never part of the proceedings claimed under that application.

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$\overline{11}$

To dispute the claim of non-existent application, the respondent/applicant in his affidavit in reply had in paragraphs 5 and 6 thereof, claimed the existence of the same and hastened to add that he had attached copies of the application (Misc. App. No. 249 of 2020, an application for execution), affidavit in reply by the respondents, the applicants then and rejoinder and the court order for execution to proceed as against the applicants who were intermeddling with the estate of the late Gashodo Gideon.

In law, sufficient reason relates to among others inability or failure to take particular steps in time. See Ssemanda Edwards & 5 others vs Nakku & Anor, HCMANo. 166 of 2019. It was the argument of counsel for the applicant that whereas the annexures pertaining to Misc. App. No. 249 of 2020 were inadvertently not attached to the applicant's affidavit in

reply to Misc. App. No. 275 of 2022, the same was part of the court record and court ought to have considered them. He claims the omission to attach the annexures to the affidavit in reply is sufficient reason for court to review its decision.

The applicant has indeed attached copies of the certified proceedings and ruling, the application in Misc. App. No.249 of 2020, marked 'C', the respondents 'affidavit in reply filed on 28^th April 2021, and the order for execution against the respondents all alluded to under paragraphs 5,6,7 and 8 of the affidavit in support of this application.

A perusal of the annexures above indeed shows, specifically the application, annexure 'C' that the applicant brought an application by way of a notice of motion against the respondents for orders that the orders in Misc. Applications Nos .159 and 160 of 2016 and 300 Civil Appeal No. 10 of 2009 be executed against the respondents and costs be provided. It is also evident that an affidavit in reply deponed by Muyanda James, the 2^nd respondent for and on behalf of the 1^st and 3^rd respondents faintly dated 26^th of what appears to be March or Nov 2021 is on record. It is also evident that whereas the said affidavit is cited as Misc. App. No. 2019 of 2019, the same was indicated as arising from Misc. Apps. No.s 160 and 159 of 2016 and Civil Appeal No. 10 of 2009 all arising from Pallisa Civil Suit No. 82 of 2004.

Because of the above and from the evidence on record, it is evident that the omission or the inadvertence by the applicant's counsel not to attach the relevant annexures in the affidavit in reply in Misc. App. No.275 of 2022 is sufficient reason for this court to review its decision.

It suffices to note that a review is not an end in itself, but it is intended to correct a mistake and enable parties to settle their rights in a proper and conclusive manner. (see Ladak A M Hussein vs. Griffiths Isingoma Kakiiza SCCA No. 8 of 1995). This, in essence, means that having established that there is a ground to warrant review, court should proceed to scrutinize the effect of the evidence which was inadvertently not brought before court when the suit was before the court.

This court will according proceed to review HCMA No. 275 Of 2022.

In that regard, in HCMA No. 275 of 2022, the applicant contended that the suit is bad in law since it seeks to set aside the ruling and orders of the learned Deputy Registrar in 320 HCMA No. 249 of 2020 wherein he ordered that execution doth issue against the respondents herein. He contended that the suit is not properly before court since it is not an appeal yet it seeks to set aside the orders of the learned Deputy Registrar. He relied on the provision of Order 50 Rules 7 and 8 of the Civil Procedure Rules.

- The respondents on the other hand contended in HCMA No. 275 of 2022 that the suit is 325 not an appeal nor a reference but an independent suit seeking to set aside the orders of the registrar that was issued illegally. They contended that the registrar cannot set aside his own ruling and yet in the said suit, the order was issued by the Deputy Registrar who did not have jurisdiction and that the respondents were not served to appear and defend. - I have reviewed the laws on the subject before court. The law expressly provides that any 330 person aggrieved with the orders of a Registrar may appeal to the Judge and in deserving circumstances, the registrar may refer a matter to be handled by the Judge as a reference. (See Order 50 Rules 7 & 8)

In the case of AG & Anor vs James Mark Kamoga & Anor SCCA No. 8 of 2004 which was cited with approval in the case of Kaggwa Micheal vs Apire John HCMA No. 142/2022, it was held that the High Court Judge has powers to review the decision of the registrar.

I have reviewed HCMA No. 275 of 2022 and it is evident that the application was brought under section 98 of the Civil Procedure Act and section 33 of the Judicature Act, both of which provide for the inherent powers of the High Court. These do not fall under the recourses provided for by the law as discussed above.

Given that HCMA No. 275 of 2022 is not an appeal or a reference from the orders of the registrar, let alone being an application for review as provided for under section 82 of the Civil Procedure Act or Order 46 of the Civil Procedure Rules, I am convinced that the application is a disguised appeal or to say the least, a fishing expedition which should not be condoned by this court. The preliminary objection raised by counsel for the respondent succeeds accordingly.

For those reasons, I find merit in the application and allow it with the following orders;

- 1. The order of this court dismissing the preliminary objection in Misc. App. No.275 of 2022 is hereby reviewed and set aside. - 350 - 2. The preliminary objection in Misc. Application No. 275 of 2022 is hereby upheld. - 3. HCMA No. 275 of 2022 is hereby dismissed with costs. - 4. Costs of the application are awarded to the applicant.

I so order.

Dated at Mbale this ...... $23^{rd}$ ....................................

**Margaret Apiny JUDGE**