[2022] UGCommC 68


### THE REPUBLIC OF UGANDA

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

# MISC. APPLICATION NO. 351 OF 2022 (ARISING FROM HIGH COURT CIVIL SUIT NO. 78 OF 2016)

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NAMAGANDA LTD .................................... **CONTENTION OF APPLICANT** 10

### **VERSUS**

1. MIAO HUAXIAN 2. DFCU BANK **RESPONDENTS**

$\mathsf{S}$

## **BEFORE HON. JUSTICE RICHARD WEJULI WABWIRE RULING**

### A. INTRODUCTION

1. This Applicant seeks to review and set aside the Order of this Court $20$ directing the 1^st Respondent to cede all the rent collected and due from the suit property from the date of purchase by the Applicant until delivery of vacant possession.

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- 2. The Application was brought under S.82 and 98 of the Civil Procedure Act, O.46 rr. 1(a), 2, 3 and 8 of the Civil Procedure Rules (as amended) and S.33 of the Judicature Act. - 3. The Application was supported by the affidavit of Vincent Mawanda who averred that if enforced, the impugned order for unquantified rent would prejudice the Applicant. - 4. In reply, the 1^st Respondent averred that this Application is 30 incompetent because there is a pending appeal filed by her against the entire Judgment of this Court in HCCS No. 078 of 2016. In its Affidavit in Reply deponed by Isaac Mpanga, the $2^nd$ Respondent averred that from the pleadings, proceedings and Submissions in HCCS No. 078 of 2016 and HCMA No. 76 of 2016, rent was a contested issue and as such, the Court rightly determined and awarded it to the Applicant. He also stated that since an appeal has been filed by the 1^st Respondent, this Application is incompetent. - 5. In Rejoinder, the Applicant averred that the Notice of Appeal filed by the 1^st Respondent is only in respect of part of the Judgment and not against the entire Judgment as alleged by the Respondents. Furthermore, that during the hearing of HCCS No. 78 of 2016, the 2^nd Respondent tendered in evidence a Valuation Report (DEx.27) indicating the monthly rental income collected from the suit property as UGX. 46,250,000/=. That since the Valuation Report was admitted on Court record, without protest by all parties, this Court ought to determine the total accrued rent on the basis of the said report.

$25$

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#### B. REPRESENTATION

6. Counsel Nelson Nerima of Nambale, Nerima & Co. Advocates represented the Applicants, while the 1^st Respondents were represented Counsel Collin Kyeyune of Mukiibi & Kyeyune Advocates and Counsel Ernest Sembatya of MMAKS Advocates appeared for the $2^nd$ Respondents.

7. The Parties filed Written Submissions, which I have carefully perused and considered. I have also addressed my mind to the law and the authorities referred to by the partes. However, before I delve into the merits of the Application, I shall determine the competence of this Application in light of the Appeal filed by the 1^st Respondent.

#### c. DETERMINATION BY COURT

- 6. Review is provided for under **S.82 of the Civil Procedure Act and O.46** of the Civil Procedure Rules (as amended) and it is intended to remedy 65 grievances which a litigant brings to the attention of Court after the Judgment. (See Kinyara Sugar v Limited v Hajji Kazimbiraine Mahmood & Others HCMA No. 003 of 2020) - $\mathbf{7.}$ O.46 r.1 (2) CPR provides that: - *"A party who is not appealing from a decree or order may apply* 70 for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or when, being Respondent, he or she can present to the appellate Court the case on which he or she applies for the review." 75

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- Suffice to note, as was righty stated by the Applicant, the Court's 8. powers of review under S.82 of the Civil Procedure Act are wider than those under **O.46 of the Civil Procedure Rules**. - The Respondents' proposition that due to the pendency of an appeal 9. by the 1^st Respondent, this application is incompetent, is in my view, misconceived.

Rule 76 (3) of the Judicature (Court of Appeal Rules) Directions provides that:

- "Every Notice of appeal shall state whether it is intended to 85 appeal against the whole or part only of the decision; and where it is intended to appeal against only a part of the decision, it shall specify the part complained of, the address for service of the appellant and the names and addresses of all persons intended 90 to be served with copies of the Notice." - $10.$ Rule 76 (3) of the Judicature (Court of Appeal Rules) Directions is couched in mandatory terms. The Notice of Appeal filed by the 1st Respondent states that it is only against part of the Judgment but does not specify the part complained of as required by Rule 76(3) above. No Memorandum of Appeal has been filed or put before this Court to prove that the issue of rent is a ground of appeal common to both the Applicant and the 1^st Respondent. It would be speculative and superfluous for this Court to reject this Application on unsubstantiated grounds.

Accordingly, I find that this Application is competent. I will now deal with the merits of the Application.

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#### D. MERITS OF THE APPLICATION

I have taken into account the respective submissions by Counsel for the parties and will not replicate them here.

- $12.$ 110 The grounds for review were articulated in the case of FX Mubuuke vs- UEB HCMA No. 98 of 2005 and these were held to be: - i. a mistake manifest or error apparent on the face of the record. - discovery of new and important evidence which after İİ. 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. - iïi. other sufficient reason exists. - 13. In Simba K Ltd & 4 other -vs- Uganda Broadcasting Corporation 120 SCCA No. 003 of 2014, the Supreme Court held that:

"The case of Odd Jobs -vs- Mubia [1970] EA 476, is to the effect that a court can decide an unpleaded matter if the parties have led evidence and addressed court on the matter in order to "arrive at a correct decision in the case and to finally determine the controversy between the parties."

In the instant case, this Court, while granting a Temporary Injunction $14.$ to the 1^st Respondent in HCMA No. 76 of 2016, directed that all rent

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collected from the suit property be deposited in Court. The 1^st Respondent failed to comply with the said Order and was accordingly 130 cited for Contempt of Court in High Court Misc. Application No. 424 of 2018. Both in its Witness Statement and in its Final Submissions, the Applicant prayed for recovery of the rent that accrued from the suit property from the date of purchase thereof until delivery of vacant possession by the 1^st Respondent. Similarly, in her Submissions, the 135 1^st Respondent sought a refund of all the rent she had remitted to the Court.

- $15.$ From the above, I am satisfied that the recovery and quantum of rent. despite not being specifically pleaded by the parties, was an issue that had to be determined in totality by the Court. I have also noted that in 140 HCMA No. 76 of 2016, HCMA No. 424 of 2018 and HCCS No. 78 of 2016, whereas this Court made several Orders pertaining to rent, the quantum of the rent was never ascertained. - However, at the hearing of HCCS No. 78 of 2016, the 2^nd Respondent 16. tendered in evidence a Valuation Report (annexure A to the 145 Applicant's Affidavit in Rejoinder) indicating that the monthly rental income collected and due from the suit property was UGX. 46,250,000/=. Whereas both the Applicant and the 1^st Respondent had the opportunity to cross-examine the $2^nd$ Respondent's Witness on the Valuation Report, none of them contested the figure of **UGX**. 150 $46,250,000$ = contained in the Report as monthly rent. - 17. Following the decision in Paul Kasagga & Another -vs- Barclays Bank HCMA No. 112 of 2009, I find that the earlier Order issued in

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favor of the Applicant for recovery of an unascertained sum of rent, is an error apparent on the face of the record.

- 18. Having found as above, I hereby award the Applicant, as rent, UGX. $46,250,000/$ = per month, from the date of purchase by the Applicant. until delivery of vacant possession to the Applicant. - The rest of my Orders are maintained as earlier issued. Each party 19. shall bear its own Costs. 160

I so order.

$155\\$

Delivered at Kampala this 31^st day of May 2022.

Richard Wejuli Wabwire JUDGE 165