[2023] UGHCFD 136

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)**

## **MISCELLANEOUS APPEAL NO. 620 OF 2021**

#### **(ARSISNG FROM CIVIL SUIT NO. 147 OF 2021)**

#### 1. **LAURA NAKUBULWA**

# 2. **KYOLABA CATHERINE SHEMMY**

# 3. **PAUL MUKASA BWANIKA :::::::::::::::::::::::::::::::: APPELLANTS**

# **VERSUS**

### **ANGELINA KAGERE LUBOWA :::::::::::::::::::::::::::: RESPONDENT.**

**Before**: Justice Ketrah Kitariisibwa Katunguka.

### **Ruling**

1. **Laura Nakubulwa, Kyolaba Catherine Shemmy And Paul Mukasa Bwanika (herein called '**the appellants') are appealing against the order/decision/ruling of the Deputy Registrar to correcting an error in an order of abatement of Civil Suit No.147 of 2021, made on the 6th day of October 2021, which in effect reinstated the abated suit; they seek orders that the purported order be set aside or vacated and that the costs of this appeal be provided for. The appeal is brought under Order 50 rule 8, Order 52 rules 1 & 3 of the Civil Procedure Rules, and section 98 of the Civil Procedure Act.

2. The grounds of this miscellaneous appeal are contained in the notice of motion and the affidavit in support deposed by Kyolaba Catherine, the 2nd appellant but briefly that: on the 14th day of September, 2021, the learned Deputy Registrar entered an Order of abatement of Civil Suit No.147 of 2021 as a result of the failure by the respondent to take out summons for directions within the time prescribed by the law; counsel for the respondent by letter dated 30/9/2021 lodged a complaint to the Deputy Registrar against the order of abatement; counsel for both parties were summoned to appear before the Deputy Registrar for the resolution of the complaint; upon receipt of the summons and the aforesaid complaint letter, the respondent's counsel filed a response to the complaint.

3. On 6/10/2021, the learned Deputy Registrar conducted a quasi-hearing in regard to the respondent's complaint and arrived at a decision to correct an error of court and essentially reinstated the abated suit; the learned Deputy Registrar erred in law and in fact

when she, having entered an order of abatement of Civil Suit No.147 of 2021 on the 14 th day of September 2021, made a subsequent order/decision 'correcting an error' with regard to the order of abatement when she was functus officio.

4. The learned Deputy Registrar erred in law and in fact by setting aside an order of court whilst functus officio and in the absence of a formal application before the court; having issued an order of abatement whilst sitting as court, she became *functus officio* and had no powers to subsequently correct, vary and set aside the order of abatement; in absence of a formal application, the procedure adopted by the learned Deputy Registrar to correct or set aside a court order was irregular, illegal and improper; therefore the appellants are aggrieved by the decision of the Deputy Registrar hence this appeal.

5. In reply, the respondent through her lawful attorney (Sarah Semanda Musoke) filed an affidavit in reply raising a preliminary objection that the appeal is a fraudulent illegality, expired and is no more, incompetent and defective; and should be dismissed because; summons and the plaint were served on the appellants on 28/5/2021; on 4/8/2021, the appellants filed their written statement of defence out time; the respondent filed a reply to the written statement of defence on 6/8/2021 protesting that the written statement of defence had been filed out of time and among others sought for a default judgment.

6. The appellants filed MA No.480 of 2021 for extension of time within which to file and serve their written statement of defence on the respondent; the respondent also filed MA No.483 of 2021 for a temporary injunction against the appellants; both miscellaneous applications were fixed for hearing before the learned Deputy Registrar which was to take place on 29/9/2021.

7. The Respondent contends that on 27/8/2021,she filed her summons for directions; however, the appellants on 14/9/2021 illegally and in bad faith misled the Deputy Registrar that the civil suit had abated; the respondent maintains that the civil suit could not be said to have abated on the basis that; no written statement of defence had been filed; pleadings between the parties had not been closed; the matter had been referred to the Deputy Registrar for trial of MA No.480/2021 and MA No.483/2021; therefore, that the declaration by the Deputy Registrar that the suit had allegedly abated is null and void and an illegality done without jurisdiction; that on realizing the illegality, the Deputy Registrar addressed the issue and established that endorsement of abatement order was done in error; hence, court exercised its inherent powers to recall the order and cause the main suit to be heard on its merits.

# **Representation:**

8. Counsel Denis Owor and counsel Phillip Munabi represented the appellants while counsel Tendo Deogratius represented the respondent; both counsel filed written submissions.

# *Submissions for the appellants:*

9. On ground one, counsel for the appellants submits that the learned Deputy Registrar whilst siting as a court under order 50 rule 6 of the Civil Procedure Rules, having exercised its jurisdiction fully and finally issuing the order of abatement of Civil Suit No.147 of 2021 was functus officio; counsel relied on **Goodman Angencies Ltd Vs. Attorney General & Another, Constitutional Petition No.03 of 2008** where the Constitutional Court referred to the Botswana case of **Magdeline Makinta Vs. Fostina Nkwe, Court of Appeal No.26/2001** where Akiwumi J. A (quoting the South African case o f **Odneste Monanyana Vs. The State, Criminal Appeal No.8 of 2001(unreported)** Held:

*"The general principle now well established in South Africa as well as Botswana is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct alter or supplement it. The reason is that it becomes thereupon functus officio, its jurisdiction in the case having been fully and finally exercised its authority over the subject matter has ceased."*

- 10. Counsel also cited the case of **Reconciling Gospel Worldwide Ltd & 3 Others Vs. Douglas Atalyeba & Another High Court Misc. Application No.264 of 2015**; where court stated that; *"My reading of Order 50 of the Civil Procedure Rules shows that the Registrar of a court has the powers to enter a default judgement but does not have powers to set it aside. Meaning that where a registrar has made such orders he or she becomes functus officio and thus cannot review his/her own order or set aside since such jurisdiction would have expired and therefore a registrar who purports to set own orders would be doing so under a wrong premise of the law which would make any default judgement entered against a party to continue to persist and in relations to the instant matter that would be the correct position…".* - 11. That being functus officio, the Deputy Registrar lacked further official authority/power to re-open or entertain any matter relating to or arising out of her order of abatement by way of summoning the parties as she did by letter, conducting a quasi-hearing in relation to her order of abatement she did; and correcting her error in relation to the said order of abatement which in essence reinstated the suit earlier abated by her order on 14th of September, 2021.


- 12. Counsel invites this court to take note that; there was no clerical or mathematical mistake in the order of abatement issued by the Deputy Registrar; that there was no accidental slip or omission with relation to the said order of abatement; there was no error in the expression of the manifest intention of the Deputy Registrar as regards the order of abatement entered on the 14th day of September 2021 since the order of abatement was unequivocal, clear and precise in as far as the court's intention was to confirm that civil suit no.147 of 2021 had abated pursuant to the provisions of Order XIA rule 6 of the Civil Procedure (Amendment) Rules, 2019 as was prayed for by counsel for the appellants. - 13. That the order of abatement was in error, the remedy available to the respondent is an appeal pursuant to Order 50 rule 8 of the Civil Procedure Rules; the Deputy Registrar could not sit in an appeal of her own; could not invoke the court's inherent powers saved under section 98 of the Civil Procedure Act for she lacked any further authority of legal competence in the matter and could not confer upon herself jurisdiction to enable her invoke inherent powers conferred by the law such as section 98 and 100 of the Civil Procedure Act and section 33 of the Judicature Act; the said inherent powers could not be used to depart from the earlier order of abatement of the Civil Suit no.147 of 2021. - 14. Whereas section 100 of the Civil Procedure Act, pursuant to which the Deputy Registrar purported to correct her error with regard to the issuance of the order of abatement of Civil Suit No.147 of 2021, gives the court general powers to amend, that power is strictly confined to amendment of pleadings. That the said power cannot be used to vary, depart from or vacate an order of the court.

## *Submissions for the respondent:*

- 15. Counsel for the respondent raised preliminary objections to the effect that; there is fraud on the record perpetuated by counsel for the appellants; the appeal was issued on the 4th of October 2021 and the same expired on the 25th of October 2021; the appellants seek to appeal an order which does not exist; the application is incompetent as against the 1st and 2nd Respondent for failure to depose affidavits in support; the appeal arises out of exercise of powers by the registrar of this court to abate the suit which jurisdiction the registrar does not have. - 16. Without prejudice to the preliminary objections Counsel proceeded to address the grounds of appeal; on ground one, counsel submitted that the order issued by the Deputy Registrar was issued in error and court shouldn't allow the same to remain on record; he cited **Kalokola Kaloli Vs, Nduga Robert Misc. Application No.497 of 2014** and **Edison Kanyabwere Vs. Pastori Tumwebaze SCCA No.4 of 2004**; where court defined an error as one which is so manifest and clear that no court would permit such an error to remain on record.


- 17. Counsel contends that the respondent has adduced affidavit evidence to prove that summons for directions to issue were taken out on the 27th day of August 2021 and duly received by court; therefore, the order of abatement under the pretext that no summons for directions was taken was issued in error; - 18. Citing Order XIA rule 2 counsel argued that the time within which to take out the summons for directions cannot be said to run when no defence has been filed; counsel contends that the appellants moved the Deputy Registrar to exercise powers she did not have and the suit did not abate for the appellants had no written statement of defence on record; secondly that the appellants were seeking the court's indulgence to extend time within which to file their defence which application was to be heard on 28/9/2021; the respondent had moved court to issue summons for directions, the pleadings were therefore not closed in the matter, the matter had been referred for trial to the registrar of this court; - 19. That the main suit falls under Order XIA rule 4 (e) of the Civil Procedure(Amendment) Rules of 2019 and therefore, it falls within the exceptions on abatement and could not have abated; that the Registrar abating the suit was an illegality and a nullity which this court could not allow to remain on the record and the Registrar properly and judicially exercised her inherent power to recall it; it is only in the interest of justice that the registrar of the court recalled the order under section 98, 99 and 100 of the Civil Procedure Act; the registrar has residual powers to correct an error on record.

## **Determination of the preliminary objections:**

20. Court has discretion to determine preliminary points of law at or after the hearing of the case depending on the circumstances of each case under *Order 6 Rule 28 of the Civil Procedure Rules; (see Uganda Telecom Ltd versus Zte Corporation SCCA No.03 of 2017);* I shall consider the objections raised and depending on the outcome resolve the merits of the application.

## *.i. There is fraud on the record perpetuated by counsel for the appellants.*

21. It is argued for the respondent that the Notice of Motion in this matter was issued by court on 4/10/2011, the application was served on the respondent beyond the 21 days from the date of issue therefore the appeal expired; that the appellant's counsel tampered with the court record, plucked off the first page of the application, and used the registry stamp and court seal to backdate the front page purporting to amend an illegality.

22. Counsel points out the differing signatures in the received stamp on the Notice of Motion served on the respondent and that on court record; the differing date of issue of the Notice of Motion served on the respondent and the date of the notice on record which counsel states was fraudulently inserted on court record; imposing the cashier's stamp and signature and the notice of motion fraudulently inserted on the court record; the backdating of the cashier's stamp with the reuse of a different receipt number on the notice of motion fraudulently inserted on the court record.

### *Analysis*

- 23.*Section 101(1) of the Evidence Act* provides that whoever desires any Court to give judgment as to the legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. The burden falls upon the respondent to prove fraud against the appellants. - 24. In **Kampala Bottlers Ltd vs Damanico (U) Ltd, SCCA No.22 of 1992**, it was held that; *"fraud must be strictly proved, the burden being heavier than one on balance of probabilities generally applied in civil matters,"* it was further held that*; '*The party must prove that the fraud was attributed to the transferee. It must be attributable either directly or by necessary implication, that is; the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act." - 25. The record shows a copy of a notice of motion was received on 13/10/2021 and endorsed by the Deputy Registrar on 4/10/2021; I find this strange because a pleading once filed, it is first received by court before it is endorsed by the respective judicial officer; counsel for the appellants did not file submissions in rejoinder to explain this gap; however there is a copy on record received by this court on 19/11/2021 wherein counsel for the appellants is raising concerns as to the fact that the notice of motion was sealed before being filed and praying the error be corrected and the file be fixed for hearing. - 26. It is trite that an illegality once brought to the attention of court cannot be ignored; (see: **Makula International Vs. His Eminence Cardinal Nsubuga (1982 HCB 11);** This being an allegation against the authenticity of records of this court I have found it prudent to look at the court's register book of miscellaneous applications and found that this instant miscellaneous appeal is reported to have been registered on the 13/10/2021 the same day when it was received by court; the date when the affidavit in support accompanying the notice of motion was deposed is stated as 12/10/2021. - 27. The Supreme Court of Uganda in **Banco Arabe Espanol v. Bank of Uganda [1999] 2 EA 22** held that; *"The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that*

*errors or lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack 'of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered."*

- 28. The date of 4/10/2021 indicated as the day when the Registrar signed the notice of motion appears to have been indicated in error; and in absence of proof that the applicant/appellant herein fraudulently changed the date or that he tampered with the stamp the objection is not supported. - 29. With regard to counsel's concern on the signature on the 'received' stamp and dates of the notice of motion copy that was served on the respondent and that on court file; I have carefully scrutinized the notice of motion received by the respondent and the notice on court record. I see a striking resemblance between the signature of the court's received stamp on the court's copy and the respondent's copy. - 30. The endorsed date on the court's copy of the notice of motion differs from the respondent's copy only to how the month is inserted; whereas the court's copy the month of October is written in numerical form as '10', the month on the respondent's copy is inserted as 'Oct';in absence of proof that the entry could not have been made on that day; in my view this difference is not fatal to the respondent's case. - 31. On the allegation that the cashier's stamp and signature on notice of motion was fraudulently inserted on the court record; the respondent has not demonstrated or presented evidence to this; for in comparison of the two copies, both have the same date as 3 Oct 2021; the same receipt number is reflected as 0002340780. - 32. In the premises no fraud has been attributed to the appellants to show that they were involved in the seemingly backdating of the dates on the notice of appeal or forged the signature on the received stamp nor the court cashier's stamp and its receipt number thereof; therefore, the respondent has not sufficiently proved fraud as against the appellants.

This preliminary objection is not sustained.

## **.ii. The appeal was issued on 4th October 2021 and the same expired on the 25th October 2021.**

33.**Order 5 rule 1 (2) of the Civil Procedure Rules** provides that service of summons must be effected within 21 days from the date of issue; **except that time may be extended upon application to court,** which must be made within 15 days after the expiration of the 21 days. (emphasis supplied).

Counsel for the respondent contends that since the notice of motion was endorsed by court on 4/10/2021; it ought to have been served on the respondent by 25/10/2021 which the appellants failed to comply with.

34. The record shows that the hearing date of 9/12/2021 was granted on 17/11/2021; The notice of motion was served upon the respondent's counsel on 17/11/2021; by court giving a date way after the timelines had expired required the appellants to first seek leave to serve out of time which they did not do; the appeal therefore was served on the respondent out of time.

This point of law succeeds.

# **iii. The appellants seek to appeal an order which does not exist.**

- 35. It is argued for the respondent that this appeal is incompetent as it seeks to appeal against an order that does not exist for reason that counsel for the appellants has not attached any order to the application. S**ection 2(0) of the Civil Procedure Act** defines what amounts to an order of court; it states that; "order" *means the formal expression of any decision of a civil court which is not a decree, and shall include a rule nisi'.* (emphasis supplied). - 36. Attached to the affidavit in support of the notice of motion is a copy of a letter written to counsel for the appellants by the Deputy Registrar dated 6/10/2021; where she stated that based on the discoveries on file, the order of abatement was issued in error; she went further to state that "court has corrected the error under section 100, 99, and 98 of the Civil Procedure Act cap.72, and section 33 of the Judicature Act Cap.12…"; she fixed the hearing of the miscellaneous applications. - 37. The word 'formal' is defined by the Oxford Languages Dictionary as *'done in accordance with convention or etiquette; suitable for…';* An order of court must be signed and sealed by the court; and it must emanate from proceedings or decision of court in a matter duly filed before the court issuing the said order; a letter like the one on court record in my view is not a court order;

The preliminary objection is upheld.

**iv. The application is incompetent as against the 1st and 2nd appellants for failure to depose affidavits in support.**

38. Counsel referred to Order 1 rule 12 of the Civil Procedure Rules and the case of **Erias Sewava Ssalongo & 18 Others Vs. Richard Male Mukasa & 2 Others R. C No.34/2018** and submitted that; the affidavit in support deposed by the 2nd applicant does not indicate whether the deponent deposed it on her own behalf and on behalf of the rest of the appellants; as such, so the appeal is not supported by the affidavits of the 1st and 3rd appellants or their instructions; and therefore the application is defective and should be dismissed.

- 39. According to the evidence on record, the affidavit in support is deposed by Kyolaba Catherine Shemmy who at paragraph 1 states and I quote**;** *"That I am an adult female Ugandan of sound mind, and the 2nd appellant in the above matter."* She goes on to narrate the events surrounding the grounds of the appeal; and under paragraph 10 she swears, **"***That what is stated herein is true and correct to the best of my knowledge and belief save for the information and advice in paragraph 6,7 and 8 above whose source is disclosed therein."* - 40. The Oxford Dictionary of Law 4th Edition defines affidavit as "A sworn written statement used mainly to support certain applications and in some circumstances, as evidence in court proceedings". The affidavit in this case is a sworn statement intended to be used as evidence. - 41. The deponent is a party to the appeal and entitled to adduce evidence in support of her case. (see **George William Katatumba & Ors V. Abarihamwe Livestock Cooperative Society Ltd & Ors Miscellaneous Application No. 06 Of 2021 (Civil Division); where court stated** that there is no legal basis for the proposition that before the particular deponent deposed to the facts in such circumstances, he had to first seek the authority of the others; court cited with approval **Namutebi Matilda vs Ssemanda Simon and 2 Others, MA No. 430/2021, where Justice Stephen Mubiru** held as follows; *"From the above discourse it then becomes clear that throughout the web of legal provisions relating to Affidavits, one golden thread is always to be seen; that what is required in Affidavits is the knowledge or belief of the deponent, rather than authorization by a party to the litigation…I have considered the available decisions positing the principle that a person is not to swear an Affidavit in a representative capacity unless he or she is an advocate or holder of power of attorney or duly authorized... Those decisions posit the view that where there is no written authority to swear on behalf of the others, the Affidavit is defective. I have not found any basis for that principle in the rules of evidence nor those of procedure. The principle appears to have developed from the analogy of representative suits, which analogy I find to be misplaced."* - 42. The 2nd appellant was swearing the affidavit in support according to her personal knowledge and belief; and discloses counsel for the appellants as the other source of information from which she acquires extra information; I find no statement in her affidavit claiming that she is deposing facts within the knowledge of others; She in fact does not claim to be swearing on behalf of other appellants. I am persuaded by the

Page 9 of 15

decision in **Namutebi Matilda vs Ssemanda Simon and 2 Others, MA No. 430/2021 (***supra***)**

43. I disagree with counsel for the respondent's argument that the appeal is defective on account of the 1st and 3rd appellants' failure to depose affidavits; **section 133 of the Evidence Act Cap 6** states that: "*subject to the provisions of any other law in force, no particular number of witnesses shall in any case be required for the proof of any fact*". In the premises, the sole affidavit in support of the 2nd appellant is sufficient to prove the facts of the appeal; and the absence of the 1st and 3rd appellant's affidavits does not render the instant appeal defective.

Therefore, this preliminary is overruled.

## **v. The appeal arises out of exercise of powers by the registrar of this court to abate the suit which jurisdiction the registrar does not have**;

44. Counsel for the Respondent argues that the powers of the Registrar are limited to the powers provided for in Order L of the Civil Procedure Rules S. I 71-1 and Practice Direction No.1/2003 Judicial Powers of Registrars; that the clear reading of the powers shows that the Registrar does not have powers to issue an alleged order of abatement. Further, that even the Civil Procedure (Amendment) Rules, 2019 Order XIA rule 1(6) does not give the Registrar powers to issue an order of abatement; counsel therefore submits that this power is only reserved for the Judge of the High Court under section 98 of the Civil Procedure Rules and section 33 of the Judicature Act. Cap.13; that the action of the Registrar in endorsing the appellant's letter claiming that the respondent's suit had abated was therefore done without jurisdiction, is ultra vires, illegal and a nullity.

## **Analysis**

- 45.**Order 50 of the Civil Procedure Rules**. **Rule 3** provides that; *"All formal steps preliminary to the trial, and all interlocutory applications, may be made and taken before the registrar."* And according to rule 6, while sitting, the Deputy Registrar is deemed to sit as civil court. - 46. The evidence on record shows that the order of abatement arose out of the appellants' failure to file summons for directions after 28 days from the date of the last reply as stipulated under Order XIA rule 1(2) of the Civil Procedure Rules (as amended). Order XIA rule 7(1) provides for the matters that may be dealt with in summons for directions; *"All formal matters preliminary to the trial and all interlocutory applications as stipulated under Order L rule 3 of these Rules may be handled under summons for directions and the registrar shall have powers and jurisdiction to handle the interlocutory applications."* What entails summons for directions is provided for by rule

1(1) of the same Order which includes; preparing the suit for scheduling conference, hearing of interlocutory applications and directions for the future course of the suit.

47. In my understanding, these are all preliminary steps to the trial of the suit which I believe the Registrar has the jurisdiction to handle and determine. If the registrar has the powers to handle summons for directions, then she has the capacity to look at the timelines and determine whether there is a substantial suit to be put before a judge for hearing; it would be a waste of time for the Registrar, having seen that the summons for directions were not filed within 28 days after the last reply, to simply forward the case file to the judge to determine a matter that does not exist.

I do not find merit in the preliminary objection.

- 48. Although I have found that the appeal was served on the Respondent out of time and without leave of court, a matter of illegality has been brought to attention of court; rules of procedure being hand maidens of substantive justice and considering that the respondent filed a reply, what would be required of them is to show prejudice if this court decides to consider the appeal under article 126(2)(e) of the 1995 Constitution of the Republic of Uganda.(see: i n **Utex Industries Ltd. Vs Attorney General (Civil Application No.52/95**); I have not found any prejudice especially since a dispute cannot be swept under the carpet because of procedural mishaps; I have therefore found that not to address the illegality would not be in the interest of justice and judicial responsibility not only to apply the law but also to correct any deviation therefrom; (see: **Makula International Vs. His Eminence Cardinal Nsubuga** *(supra***);** - 49. I shall therefore go ahead and consider whether there is an illegality; when **The Learned Deputy Registrar having entered an order of abatement of civil suit No.147 of 2021 on the 14th day of September 2021, made a subsequent order/decision correcting an error with regard to the order of abatement whereas she was functus officio;** - 50. Counsel for the appellants/defendants by letter filed in this court on 13/9/2021 wrote to the Registrar pointing out that, I quote *"The plaintiff ought to have taken out summons for directions pursuant to the provisions of Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules, 2019 on or before or before Friday 3rd September 2021 but did not do so. There is no record for summons for directions pending before the court."* Therefore, counsel for the defendants prayed that the suit abates under the provisions of Order XIA rule 1(6) of the Civil Procedure Rules, 2019. The registrar granted the order of abatement on 14/9/2021 on the ground of failure by the plaintiff to take out summons for directions within the stipulated timelines.

- 51. On receiving a complaint from the plaintiff's counsel, the Deputy Registrar summoned both counsel to appear before her on 6/10/2021; she issued a ruling by letter stating that; based on the discoveries of what is on the file, the order of abatement was issued in error because at the time of its issuance the file did not reflect the true position of the suit concerning the two pending miscellaneous applications arising out of the main suit; and the fact that the plaintiff had taken out summons for directions on 27th August 2021, that is 19 days before the order; thereof, the learned Deputy Registrar proceeded to order that, I quote*; "Based on the above, court has corrected its error under section 100, 99 and 98 of the Civil Procedure Act and section 33 of the Judicature Act. Cap.3 and further states the applications are fixed for hearing on 29th November 2021 at 9:30am." ;* - 52. Counsel for the appellants argues that; the learned Deputy Registrar having entered an order of abatement of Civil Suit No.147 of 2021, she became functus officio; and lacked authority to reopen any matter relating to the order of abatement. - 53.**Black's Law Dictionary 8th edition page 1982** defines the term *functus officio* in the following phrases; *"[Latin "having performed his or her office"] (Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished."*

## 54.**In Jersey Evening Post Limited vs. Ai Thani [2002] JLR 542 at 550:** -court held:

*"A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available".*

- 55. The law that governs amendment of judgments, decrees or orders is an exception to the doctrine of *functus officio* which is stated under **Section 99 of the Civil Procedure Act** and provides that**; "***Clerical or mathematical mistakes in judgments, decrees or orders or errors arising in them from any accidental slip or omission may at any time be corrected by the court either on its own motion or on the application of any parties."* Order 100 of the Civil Procedure Act grants court general powers to amend proceedings and not court orders. - 56.*Mulla on the Code of Civil Procedure, Volume 1, 17thEdition at page 1631* as cited in *Transtrac Limited Vs Damco Logistics Ltd, Misc App. No. 348 of 2012 is* to the effect

that the test to determine whether the slip or omission is accidental or not, could be gathered from the intention of the judge in preparing the judgment or order.

- 57. The Supreme Court in **Uganda Development Bank Ltd Vs. Oil Sees (U) Ltd; MA 15 of 1997 (SC);** held thus; "*In a situation like that, the Court has inherent jurisdiction to recall its judgments in order to give effect to its manifest intention or what clearly would have been the intention of the Court had some matter not been inadvertently omitted, but the Court will not sit on appeal against its own Judgment in the same proceedings."* Further "*A slip order will only be made where the Court is fully satisfied that it is giving effect to the intention of the Court at the time when Judgment was given or in the case of a matter which was overlooked, where it is satisfied beyond reasonable doubt, as to the order which it would have made had the matter been brought to its attention. The applicant must therefore prove that there was a clerical or arithmetic mistake in the judgment or any error arising from an accidental slip or omission which did not give effect to the intention of the Court when it passed the judgment."* - 58. In the case at hand, when the learned Deputy Registrar entered the order of abatement, she became functus officio; in her subsequent ruling of 6/10/2021, she appeared to be correcting an error that led to the order of abatement under Order XIA rule 1(2) of the Civil Procedure Rules (as amended). In my view, the order of abatement was clear and reflected the intention of court; as to whether it was mistakenly made is another matter. I therefore see no clerical or mathematical mistake or an accidental slip in the aforesaid order of abatement to warrant the correction; for where the intended corrections go to the substance of the judgment or order as is in this case, the slip rule is not applicable. (See: **Raniga Vallabhadas Karsandas V. Mansukhlal Jirraj [1965] EA 700**) - 59. The Supreme Court in **Attorney General & Uganda Land Commission vs James Mark Kamoga & Anor, SCCA No. 8 of 2004**, recounted the powers conferred on Registrars of the High Court by law and stated as follows: – *"The powers of Registrars are set out in Order 50 of the CPR, and enhanced in Practice Direction No. 1 of 2002. …... powers to enter judgments in uncontested cases and consent judgments, to deal with formal steps preliminary to the trial, and with interlocutory applications, and to make formal orders in execution of decrees; and the latter empowers the Registrar to handle matters governed by specified rules and Orders of the CPR, which do not include any rule of Order 46. …...'* - 60. The implication of the ruling issued by the learned Deputy Registrar 'correcting' the abated order was the reinstatement of Civil Suit No.147 of 2021; for she further went to fix the hearing of the two pending miscellaneous applications which were arising from the main suit. I shall refer to the decision of court in **Suryakant Manibhai Patel v.**

**Gume Fred Ngobi HCCS NO. 98 OF 2017 (Jinja)** where it was held that; the order for reinstatement of the abated suit is contrary to the law and as such an illegality. Court further stated that reinstatement of an order of abatement cannot be left to stand on court record. I hold the same view.

- 61. In light of the above, I find that the learned Deputy Registry having become functus officio, had no jurisdiction or power premised on the complaint filed by counsel for the plaintiff/respondent to give orders that substantially altered the abatement order which in effect looks like the judicial officer was sitting on appeal of her judgment which is illegal; the plaintiffs' recourse if aggrieved lay under Order 50 rule 8 of the Civil Procedure Rules that states; "Any person aggrieved by any order of a registrar may appeal from the order to the High Court." - 62. Before I take leave of the matter I have, in the interest of justice pursuant to section 98 of the Civil Procedure Act and section 33 of the Judicature Act, invoked this court's inherent powers under Article 139 of the 1995 Constitution, and deemed it necessary to forestall multiplicity of suits and taken the liberty to call for and study the Register for Summons for Directions at the High Court Family Division. It is alleged that the summons for directions was filed on 27th August 2021 and that is the basis upon which the civil suit was reinstated. - 63. The Register book shows that between 13th August 2021 to 27th September 2021 no record was made - between SD iv/21- CS 111/21 Mukasa Vincent & 6 Ors vs Mukiibi Sikutta recorded on 13th August and SD V/21 -CS 73/2021 Kiggundu Samuel & Ors vs Kiyagga Geofrey which was recorded on 27/9/2021 in that order. There is no record of Summons for Directions for CS No. 147/2021 Angelina Kagere Lubowa vs Laura Nakubulwa & 2Ors; a look at the alleged filed summons for directions which is attached to a forwarding letter with a Received stamp purportedly of the High Court Family Division; does not show that the summons was received by the court yet the practice is that the summons itself is stamped 'received' to await issue after endorsement by the Registrar. I therefore find no summons for Directions was filed on 27th August 2021 as alleged by the respondent; The order of abatement issued by the Registrar is valid because there was no summons for directions filed within the timelines. - 64. Having found that the procedure followed by the learned Deputy Registrar of 'correcting' an abated civil suit and reinstating the same was an illegality and defective; since court considered the issue of illegality because it could not be left to stand; and not because the appeal was decided on merit, each party shall bear their costs.

In the premises it is hereby ordered as follows:

- 1. The order of abatement of HCCS No. 0147/2021was properly entered and stands. - 2. The order of the Learned Deputy Registrar reinstating HCCS No. 0147/2021 is hereby set aside. - 3. Each party shall bear their costs.

Ketrah Kitariisibwa Katunguka Judge. 7/07/2023

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