[2025] UGCommC 83

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

# **CONSOLIDATED MISCELLANEOUS APPLICATION NO. 86 OF 2025 AND MISCELLANEOUS APPLICATION NO. 98 OF 2025**

10 **(ARISING FROM EMA NO. 407 OF 2024 AND EMA NO. 441 OF 2024) (ALL ARISING FROM ORIGINATING SUMMONS NO. 15 OF 2023)**

- **1. SARICK CONSTRUCTION LTD** - **2. SAMUEL OKURUT** - **3. GORRET OKURUT ::::::::::::::::::::::::::::: APPLICANTS/DEFENDANTS**

15 **VERSUS**

# **STANBIC BANK UGANDA LTD ::::::::::::::::::: RESPONDENT/PLAINTIFF**

#### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### **CONSOLIDATED RULING**

#### Introduction

- 20 These consolidated applications were brought by way of Notice of Motion under **Sections 82 and 98 of the Civil Procedure Act, Cap. 282, Order 46 rule 1(1)(a)** and **Order 8 of the Civil Procedure Rules SI 71-1**, seeking orders that: - 1. The Rulings of **Her Worship Jessica Chemeri** delivered on 9th 25 January, 2025, be reviewed and set aside. - 2. Costs of the applications be provided for.

#### Background

1 The background of the applications is detailed in the affidavits in support and supplementary affidavit deponed by **Mr. Samuel Okurut**, the 1st

- 5 Applicant in *Misc. Application No. 86 of 2025* and as the Director of the Applicant in *Misc. Application No. 98 of 2025*, and is summarized below: - 1. That their lawyers M/s Nabwire & Co. Advocates were served with the hearing notices for the notice to show cause why execution 10 should not issue on 8th January, 2025 and the matters were to be heard the following day on 9th January, 2025. - 2. That he did not get enough time to interact with his lawyers to give them detailed information on how to pay their creditors. - 3. That Court did not capture the important piece of evidence which, 15 after the exercise of due diligence, was not within their knowledge at the time the Rulings were delivered. - 4. That following numerous communications between the Applicants, their contractor, employer and former employer in the project for upgrading the Kabale-Lake Bunyonyi and Kisoro-Mgahinga roads; 20 on 17th January, 2025, the Ministry of Works and Transport wrote to the funder of the project requesting them to deposit the advance payment amounting to UGX 16,000,000,000/=. - 5. That the said amount will be effected within sixty calendar days and then the Applicants will be able to pay their creditors. - 25 6. That the Applicants are in the process of making an arrangement proposal with the Respondent. - 7. That it is in the interest of justice to grant the applications to facilitate the consideration and implementation of the proposed arrangement. - 30 8. That the applications have been made without unreasonable and/or undue delay since the date of the Rulings made by **Her Worship Jessica Chemeri** was the 9th day of January, 2025.

- 5 In reply, the Respondent through **Mr. Joshua Kitamirike**, its Manager Business Support and Resolution, opposed both applications contending that: - 1. The Respondent applied for execution in *EMA No. 441 of 2024* and *EMA No. 407 of 2024* on 17th September, 2024 and 29th August, 10 2024 respectively. - 2. The said evidence is not new and was available to the Applicants as far as 2023 and the same was availed to the Deputy Registrar on 9th January, 2025 when the applications for execution came up for hearing to show cause and the same was duly considered before the 15 applications were granted. - 3. The Deputy Registrar rejected the arguments of pending payments as the same had no certain payment timeline and the payments were not in relation to the borrower/Applicants herein. - 4. The Applicants have not presented any evidence of bank guarantees - 20 that they have obtained that would support them to secure any disbursement of the advance payment. - 5. The Applicants do not dispute the debt and no appeal against the decision of the Learned Judge was preferred. - 6. Despite several references to the contract between Samcrete Egypt 25 Engineers and UNRA since 2023, the borrower/1st Applicant has not been able to pay any proceeds from that contract to the Respondent for over three years. - 7. The Respondent is not a party to the transactions between Samcrete Egypt Engineers and UNRA and is not a beneficiary of the proceeds 30 from the contract.

5 8. Following the Applicants' failure to make any payments for over three years, despite several engagements, the parties have not agreed on any payment terms or payment arrangements of any form.

### Representation

The Applicants were represented by Learned Counsel Eunice Abaho of **M/s**

10 **Nabwire & Co. Advocates** while Learned Counsel Bruce Musinguzi, Learned Counsel Joakim Kunta-Kinte and Learned Counsel Mercy Makabayi of **M/s Kampala Associated Advocates** represented the Respondent.

Counsel for the parties made oral submissions and Court has considered 15 their submissions in this Ruling.

## Issues for Determination

- 1. Whether there are grounds for review of the Rulings in *EMA No. 407 of 2024* and *EMA No. 441 of 2024*? - 2. What remedies are available to the parties? - 20 Issue No.1: Whether there are grounds for review of the Rulings in *EMA No. 407 of 2024* and *EMA No. 441 of 2024*?

Analysis and Determination

## **Section 82 of the Civil Procedure Act** provides that:

"*Any person considering himself or herself aggrieved-*

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

5 *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 the Court considers fit*."

The above provision is echoed under **Order 46 rule 1(1) of the Civil Procedure Rules** which stipulates that for the Court to be moved to review

- 10 its judgment/decree/orders, the Applicant must prove the following grounds; - a. Discovery of new and important evidence which, after the 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 15 or the order made. - b. A mistake or error apparent on the face of the record. - c. Any other sufficient reason.

Therefore, review may be granted on the ground of discovery of new and important matter of evidence which, after the exercise of due diligence, 20 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.

From the above provision, it is established, that for a party to succeed on this ground, it is not enough for him/her to only allege discovery of new evidence that could not be produced at the trial but must prove that the 25 said evidence was not within his/her knowledge or could not have been produced at the time of the original judgment. It must also be demonstrated that the Applicant exercised due diligence to discover and present the evidence, but was unsuccessful and the evidence in issue must be relevant to the case, to the effect that had it been produced earlier, it

5 might have altered the decision. (See: *Jacquelyn Amoko Vs Noah Wasige and 6 Others Misc. Application No. 463 of 2023*).

In the present case, vide *Originating Summons No. 15 of 2023*, the Respondent sued the Applicants herein seeking Court's determination on; whether as a legal mortgagee, it had the right to foreclose and sell the 10 mortgaged property so as to recover the total amount owed in respect of the principal, interest, costs and other charges arising from the 1st Applicant's loan, whether it was entitled to sell the property by private treaty or public auction, whether it was entitled to vacant possession of the property and whether it could evict the Applicants and their tenants.

15 The above questions were founded on the facts that; the Respondent offered several loan facilities to the 1st Applicant and as security, the 2nd and 3rd Applicants, who are the Directors of the 1st Applicant, mortgaged their properties comprised in Busiro Block 394 Plot 270 and Busiro Block 392 Plot 1270 land at Sekiunga and chattels through a Chattels Mortgage 20 Deed.

The Applicants defaulted on payment of the loan facilities. Consequently, the Respondent filed *Originating Summons No. 15 of 2023*, which was determined in its favour. Vide *EMA No. 407 of 2024*, the Respondent proceeded for execution and on 9th January, 2025, a warrant of delivery of 25 vacant possession was issued against the Applicants and vide *EMA No. 441 of 2024*, the Respondent obtained a warrant of attachment and sale of the mortgaged property.

The Applicants now contend that the Court did not capture an important piece of evidence which, after the exercise of due diligence, was not within

5 the knowledge of the Applicants at the time the Rulings were delivered by **Her Worship Jessica Chemeri.**

The evidence in issue is that the 1st Applicant is a sub-contractor for the upgrading of Kabale-Lake Bunyonyi and Kisoro-Mgahinga roads under contract No. UNRA/WRKS/202021/00069, as evidenced by annexure "**A**" 10 attached to the affidavit in support. That the main contractor bid and was awarded a contract to upgrade Kabale-Lake Bunyonyi and Kisoro-Mgahinga roads and the works are being funded by the African Development Bank Group and the contract is worth UGX 112,000,000,000/=. In evidence, they relied on annexure "**B**" attached to 15 their affidavit in support.

That, following numerous communications between the employer, the contractor and the sub-contractor concerning the urgency of the 1st Applicant's indebtedness, an agreement was reached wherein the contractor requested for advance payment from the project funder.

20 That on 20th December, 2024, the Applicants' former employer Uganda National Roads Authority wrote to the main contractor to provide bank guarantees denominated in US Dollars and Uganda Shillings to secure the disbursement of the advance payment. That on 17th January, 2025, the Ministry of Works and Transport also wrote to the project funder 25 requesting for advance payment of UGX 16,000,000,000/=. That the said payment will be effected within sixty calendar days and then the Applicants will be able to pay the creditors. The Applicants relied on annexures "**E**"**,** "**F**" and "**G**" attached to their affidavits in support.

As to whether the above evidence is new, though the Applicants contend 30 the same to be new, the Respondent's uncontroverted contention is that

5 the same information was presented by the Applicants during the execution hearings in *EMA No. 407 of 2024* and *EMA No. 441 of 2024*. I have also looked at the said annexures and observed that except for annexure "**G**", the rest of the annexures were in existence at the time the Deputy Registrar considered the aforementioned execution applications 10 and therefore the information therein is not new. Since annexure **"G"** is dated 17th January, 2025, it proves that it was not in existence on 9th January, 2025 when the Deputy Registrar delivered the Rulings in *EMA No. 407 of 2024* and *EMA No. 441 of 2024*. In the case of *Jacquelyn Amoko Vs Noah Wasige and 6 Others (supra),* **Hon. Justice Stephen** 15 **Mubiru** held that:

> "*The matter of evidence must have emerged after the passing of the judgment or order. It should be newly discovered evidence which existed at the time of the hearing but came to the Applicant's notice only after the decision was delivered*."

20 In the instant case, according to the Court record, it is shown that except for the information in annexure "**G**", which was non-existent at the time of issuance of the warrants, the rest of the information was within the Applicants' knowledge and was even considered by Court.

In addition to the above, the information contained in the said annexures 25 including annexure **"G"** concerns other entities and not the 1st Applicant. Also, no direct information has been provided to prove that the money expected, will cater for the Applicants' debt payment. I have also noted that the Applicants do not deny the debt in issue but contend in the applications that they are in the process of making an arrangement 30 proposal with the Respondent. However, no such agreed proposal between the parties was availed to this Court.

- 5 Therefore, considering that the new evidence should be important to have an impact on the decision of the Court, had it been considered; this Court is not convinced that annexure **"G"** attached to the affidavits in support of the applications would have had an impact on the decision that was made by the Deputy Registrar. Further annexure **"G"** which is dated 17th - 10 January, 2025 does not qualify to be considered as new evidence or information to warrant a review of the Court orders since it was written after the Deputy Registrar had delivered the Rulings in *EMA No. 407 of 2024* and *EMA No. 441 of 2024.* - In the circumstances, the nature of evidence presented by the Applicants 15 in these instant applications has not satisfied the statutory requirements for review of the Rulings of the Deputy Registrar in *EMA No. 407 of 2024* and *EMA No. 441 of 2024* as envisaged under **Order 46 rule 1(1) of the Civil Procedure Rules**. Accordingly, *Misc. Application No. 86 of 2025* and *Misc. Application No. 98 of 2025* are hereby dismissed with costs 20 to the Respondent.

I so order.

Dated, signed and delivered electronically via ECCMIS this **20th** day of **March, 2025**.

25 Patience T. E. Rubagumya **JUDGE** 20/03/2025 6:40am