[2024] UGHCFD 25

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [FAMILY DIVISION] MISCELLANEOUS APPLICATION NO. 938 OF 2022 (ARISING FROM DIVORCE CAUSE NO. 111 OF 2017)**

#### **1. SEETA VICTORY CATHEDRAL LIMITED**

#### **2. KANYUNYUZI PRISCILLAR**

- **3. KASIBANTE ROGERS** - **4. NYANZI DAVID ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS** - **5. NYANZI JIMMY** - **6. NAMAGEMBE IRENE**

#### **VERSUS**

- **1. ROBINAH NYANZI** - **2. HENRY NYANZI :::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1.0 INTRODUCTION.**

- 1.1 This is an Application brought by Notice of Motion under Sections 33 & 39 of the Judicature Act, Cap. 13, Sections 82 & 98 of the Civil Procedure Act, Cap. 71, Order 46 Rule 1(1) (a) & (b) and 8, and Order 52 Rules 1, 2, & 3 of the Civil Procedure Rules SI 71-1, seeking the following orders; - 1. The Court reviews and/or sets aside its judgement and orders granted on the 4th March, 2022 by Hon. Justice David Matovu vide Divorce Cause No. 111 of 2017 for it was entered without regard to and/or inadvertently in disregard of the fact that the same would affect the proprietary rights and interests of the Applicants who hold legal interests in most of the properties hand-picked by the 1st Respondent for attachment and sale vide HCT-EMA No. 035 of 2022, Arising from Divorce Cause No. 111 of 2017.


2. The costs of this application are provided for.

- 1.2 The grounds upon which the application is based are set out in the affidavits sworn by Amanya Francis on behalf of the 1st Applicant, Kanyunyunzi Priscillar the 2nd Applicant and Nyanzi Jimmy, the 5th Applicant on behalf of the other applicants, in summary they are that; - 1. The Applicants are aggrieved by the Judgement and orders entered on 4th March, 2022 by Hon. Justice David Matovu vide Divorce Cause No. 111 of 2017 as it affects their proprietary rights and interests in respect of some of the decreed properties. - 2. The Judgement and orders in Divorce Cause No. 111 of 2017 were entered without regard to and/or inadvertently disregarding the fact that the same would affect the proprietary rights and interests of the Applicants who hold legal and equitable interests in most of the properties handpicked by the 1st Respondent for attachment and sale vide HCT-EMA No. 035 of 2022 arising from Divorce Cause No. 111 of 2017. - 3. There is an error apparent on the face of the record. - 4. The Applicants are currently owning and/or in possession of the said properties carrying on and/or using them for various activities. - 5. The Applicants were not party to Divorce Cause No. 111 of 2017 entertained between the 1st and 2nd Respondents herein and it is unfair and unjust to have such an order is enforced against them without being heard on the same. - 6. It is just and fair that the Judgement and orders vide Divorce Cause No. 111 of 2017 be reviewed and/or set aside.


- 7. The Application is filed without any delay upon learning of the said orders and application for execution proceeding vide HCT-EMA No. 035 of 2022 arising from Divorce Cause No. 111 of 2017. - 8. That is in the interest of justice that the Application be allowed. - 1.3 The Applicants were represented by Mr. Albert Collins Kyeyune of M/S Mukiibi & Kyeyune Advocates, Kampala. - 1.4 The 1st Respondent filed an Affidavits in Reply to the 1st, 2nd and 5th Applicant's Affidavits in Support of the Notice of Motion on 1st December, 2023. - 1.5 The 1st Respondent was represented by Mr. Isaac Isabirye of M/S Isabirye & Musabi Advocates, Kampala. The 2nd Respondent did not participate in this application.

### **2.0 Background of this Application.**

- 2.1 The 1st Respondent filed a Divorce Petition against the 2nd Respondent vide Divorce Cause No. 111 of 2017 which suit was entertained by this Honourable Court and adjudicated upon in a Judgement delivered by Justice David Matovu on the 4th March, 2022 which was in favour of the 1st Respondent wherein, the divorce was granted by this Honourable court amongst other orders therein. - 2.2 Consequently, the 1st Respondent commenced execution of the decree from the said Judgement and she lodged an application for execution against the 2nd Respondent vide HCT-EMA-No 035 of 2022 arising out of Divorce Cause No. 111 of 2017 wherein she singled out properties she had allegedly admired to attach and sale in execution of the decree. However, the applicants contend that as per the Judgement, the property ought to be registered in the names of the Petitioner (1st Respondent herein) and the Respondent (2nd Respondent herein) between 28th February, 1988 until 5th April,


2019 when the court endorsed the decree absolute and thus constitutes Matrimonial Property belonging to both Respondents. The Applicants contend that some of the properties singled out by the 1st Respondent did not belong to the 2nd Respondent but rather to the Applicants herein.

2.3 The 1st Respondent opposed the Application stating that this Application is an abuse of the court process and there is nothing to Review. She contends that this Application is a calculated move by the applicants intended to defeat the execution process and deny the 1st Respondent the fruits of the Judgement. She further contended that the property that was decreed matrimonial property in Divorce Cause No. 111 of 2023 is matrimonial property that was acquired by the contribution of both the 1st and 2nd Respondents. The Applicants have never been the owners of the said properties.

## **3.0 Preliminary Objections.**

3.1 The 1st Respondent raised four preliminary objections listed in her submissions that shall be determined alongside the issues raised before this Honourable Court.

## **4.0 Issues to be determined by this Honourable Court.**

- 1. Whether the application was served out of time without leave of court? - 2. Whether the application is an abuse of the Court process and overtaken by events as the Judgement sought to be reviewed by the Applicants was already appealed against by the 2nd Respondent? - 3. Whether the affidavit in support of Amanya Francis be expunged from the record as he did not have the authority to swear the same on behalf of the 1st Applicant.


- 4. Whether the affidavit of Nyanzi Jimmy should be struck off the Court's record as he did not have authority to swear the said affidavit on behalf of the 3rd, 4th and 6th Applicants? - 5. Whether the Applicants are aggrieved persons? - 6. Whether the Application meets the criteria for Review under Section 82 of the Civil Procedure Act? - 7. Whether Orders which were granted by this Honorable Court Vide Divorce Cause No. 111 of 2017 can be set aside?

### **5.0. Written Submissions.**

5.1. Learned Counsel filed written submissions citing several authorities that have assisted me in determining this Application for Review. I have carefully perused the record and considered the submissions of learned counsel. I have also read several authorities from this Court on Review. What runs through all the authorities is the fact that the law and the principles in this area are well-settled.

#### **6.0. Determination of Issues by this Court.**

## **Whether the application was served out of time without leave of court?**

- 6.1. The 1st Respondent submitted that the Registrar of this Honourable Court signed the Notice of Motion on the 5th October, 2023 but the same was served on her on the 16th November, 2023 out of time without leave of court. - 6.1.1. The 1st Respondent submitted that **Order 5 Rule 2 of the Civil Procedure Rules SI 71-1** is to the effect that Service of Summons should be made within 21 days from the date of issue. Where the summons are not served within 21 days, then the application should be made to the court within 15 days for an extension of time within which to serve the said summons. The current application was served after 41 days without leave of court and no application for extension of time was ever filed.

Page **5** of **19**

- 6.1.2. The Applicants on their part submitted that service was conducted directly on the 1st Respondent who transferred the same onto her lawyers thereafter. They further contended that the Affidavits in Reply to the Affidavit are proof that the 1st Respondent was served. - 6.1.3. There is no affidavit of service presented to this court by the Applicants. Their submissions in Rejoinder do not indicate the date of the alleged service on the 1st Respondent. The Respondent however presented a Notice of Motion upon which a stamp of receipt was appended dated 16th November, 2023 by Wakabala & Company Advocates. - 6.1.4. The court however weighs the substance of this matter against the 41 days of delay and finds that the scales must weigh towards hearing this application on its merits. This court strongly discourages failure to adhere to the Civil Procedure Rules. The court in this case will lean towards Article 126 (2) (e) of the Constitution of the Republic of Uganda 1995 as amended to enable hearing this application interparty and not to preliminary dismiss the application. - **6.2. Whether the application is an abuse of the Court process and overtaken by events as the Judgement sought to be reviewed by the Applicants was already appealed against by the 2nd Respondent?** - 6.2.1. The 1st Respondent contends that the decision in Divorce Cause No.111 of 2017 was already appealed against by the 2nd Respondent and thus this Application for Review has been overtaken by events. She contended that review is available to a person aggrieved by a decree from which no appeal has been preferred. - 6.2.2. In reply to this, the applicants contend that they never appealed the decision in Divorce Cause No. 111 of 2017 and cannot be said to be part and parcel of the 2nd Respondent's appeal as the two have


different interests. The applicants also contended that they could not appeal a decision which they were not party to.

- 6.2.3. At this juncture I am alive to the fact that the 2nd Applicant was party to Divorce Cause No.111 of 2017 as a Co-Respondent she therefore cannot plead ignorance of the Divorce Cause. I am also quick to add that the 2nd Applicant might not have preferred to appeal the decision of the trial judge in Divorce Cause No. 111 of 2017 giving her locus to file this application. - 6.2.4. This is an application for review of the decision made affecting the proprietary rights and interests of the Applicants who contend that they hold legal and equitable interests in most of the properties selected for attachment and sale vide HCT-EMA No. 035 of 2022 arising from Divorce Cause No. 111 of 2017. - 6.2.5. The Appeal filed by the 2nd Respondent is based on 5 grounds which are that; - a) The learned trial judge erred in law and fact when he held that the property registered in the names of the Petitioner and the Respondent between 28th February, 1988 until 5th April constituted Matrimonial Property and should be shared in accordance with the decision in **Rwabinumi V Bahimbisomwe SCCA 10/2009.** - b) The learned judged erred in law and fact when he held that no credible evidence was adduced to nullify the marriage celebrated on 28th February, 1998. - c) The trial Judge erred in holding that the Respondent and the children should remain in the matrimonial home. - d) The learned Judge erred in holding that the custody arrangement had reduced the threats of violence and should be maintained


- e) The learned trial judge erred in law and fact when he failed to properly evaluate the evidence on record thereby reaching wrong findings. - 6.2.6. The alleged proprietary rights of the Applicants to the suit property may not be determined in the Appeal. Other than the 2nd Applicant, the rest of the Applicants were not party to Divorce Cause No. 111 of 2017 and cannot appeal the decision therein. They could therefore pass the test as aggrieved persons by the decision of the court in Divorce Cause No. 111 of 2017. It is for this reason that the court finds that this Application has not been overtaken by events. This Preliminary Objection is dismissed. - **6.3. Whether the affidavit in support of Amanya Francis be expunged from the record as he did not have the authority to swear the same on behalf of the 1st Applicant?** - 6.3.1. The 1st Respondent submitted that the Affidavit deponed by Amanya Francis arose from the affidavit on behalf of the 1st Applicant in HCT-EMA No. 35 of 2022. That the deponent did not have the authority to swear the affidavit on behalf of the 1st Applicant in this application. - 6.3.2. The Resolution under paragraph one states that "Amanya Francis represents the company in the Objector Proceedings instituted by the Company arising from HCT-EMA No: 035 of 2022; Robinah Nyanzi V Henry Nyanzi *and in all applications and matters arising incidental thereto*". - 6.3.3. The Applicants herein seek an order that the court reviews and or set aside its judgement and orders granted on the 4th March, 2022 by Hon. Justice David Matovu vide Divorce Cause No. 111 of 2017 for it was entered without regard to and/or inadvertently in disregard of the fact that the same would affect the proprietary rights and interests of the Applicants who hold legal interests in


## most of "*the properties hand-picked by the 1st Respondent for attachment and sale vide HCT-EMA No. 035 of 2022, Arising from Divorce Cause No. 111 of 2017".*

- 6.3.4. The gist of this is matter arose from HCT-EMA No. 035 of 2022, arising from Divorce Cause No. 111 of 2017 and therefore Amanya Francis had the authority to depone the affidavit on behalf of Seeta Victory Cathedral Limited. The Affidavit deponed by Amanya Francis shall stand. - **6.4. Whether the affidavit of Nyanzi Jimmy should be struck off the Court's record as he did not have the authority to swear the said affidavit on behalf of the 3rd, 4th and 6th Applicants?** - 6.4.1 On 6th October, 2022 the Applicants filed in court an "Authority to swear an affidavit" signed by the 3rd, 4th, 5th and 6th Respondent. They were consenting to Nyanzi Jimmy depones an affidavit on their behalf in respect of this application. The affidavit on record filed on 6th October, 2022 is for Nyanzi Jimmy stating that he had authority from the siblings. The Authority referred to Nyanzi David (as the 5th Applicant) instead of Nyanzi Jimmy who deponed the affidavit. - 6.4.2. A Mistake of Counsel was made in the drafting of the Authority to swear an affidavit on behalf of the 3rd, 4th and 6th Applicants by Nyanzi Jimmy the 5th Applicant. The Authority referred to Nyanzi David instead of Nyanzi Jimmy who deponed the affidavit. - 6.4.3. The intention of the parties is clear. There are two Nyanzi's whose names were exchanged in the drafting, but any reasonable man looking at the Authority to swear the affidavit and the affidavit can understand that there was a mistake made. It would be in bad faith for Counsel to allege a lack of Authority where there was a typing error made in the drafting of the Authority. The court does not confer an absence of human error on the Advocates that draft pleadings unless it is so egregious that it can only have been made by the


careless incompetence of the said advocate. The court finds that this is not the case. The affidavit deponed by Nyanzi Jimmy shall stand.

## **7.0. Determination of the Review.**

## **The Law.**

- 7.1. The position of the law regarding an application for review is set out under **Section 82 (a) Civil Procedure Act, Cap. 71** which provides that; "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 no appeal has been preferred; or - b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement 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.

## 7.2. **Order 46 (1) of the Civil Procedure Rules, SI- 71-1** provides that;

- 1. 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.

 - 2. A party who is not appealing from a decree or order may apply 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. - 7.3. The grounds for review were enunciated in the case of **FX Mubuuke Vs UEB High Court Misc. Application No. 98 of 2005** to be: - 1. That there is a mistake or manifest or error apparent on the face of the record. - 2. That there is discovery of new and important evidence which after 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. - 3. That any other sufficient reason exists. - 7.4. **Whether the Applicants are aggrieved persons and whether the Application meets the criteria for Review under Section 82 of the Civil Procedure Act?** - 7.4.1. A person aggrieved means a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. **Ladak Abdulla V Griffiths Isingoma Kakiza & 2 Others Civil Appeal No 8 of 1995.** - 7.4.2. The 1st Applicant contends that some of the properties awaiting execution HCT-EMA No. 035 of 2022 belong to the church and yet the Church is not a party. The Applicants aver that the church is the registered owner of Motor Vehicles Registration No. UAY 705G Canter Mitsubishi, UAL 548U Fighter Isuzu, UAX 371X DAF truck and UAY 893P Canter Mitsubishi & UAZ 678T. They also contend


that the church is also the owner of the Land comprised in Kyaggwe Block 110 Plots 3492 and 3493 Land in Seeta although it's currently registered in the names of the 2nd Respondent as a trustee, being a Senior Pastor of the church at the time. The 1st Applicant avers that the church is therefore aggrieved by the decision in Divorce Cause No. 111 of 2017.

- 7.4.3. The 2nd Applicant also contends that she is the registered proprietor of land comprised in Kyaggwe Block 165 Plot 2352 land at Namataba having purchased it from the 2nd Respondent and therefore avers that she is aggrieved by the judgement and decision in Divorce Cause No. 111 of 2017. - 7.4.4. The 3rd through 6th Applicants contend that along with their father the 2nd Respondent, they are the registered proprietors of the land comprised in Kyaggwe Block 101 Plot 2483 Land at Misindye & Sonde having been registered as joint proprietors on 13th June, 2017 at 10:51 am. - 7.4.5. I have studied the properties listed above from the date of registration or acquisition and find as follows; Motor Vehicles Registration No. UAY 705G Mitsubishi Canter Truck, UAL 548U Mitsubishi Fuso Model FK, UAX 371X DAF LF45 truck and UAY 893P Mitsubishi Canter Truck were acquired by the 1st Applicants on the following dates as per the log book in the table below;

| Registration | & | Date | of | Registered | | |--------------|--------|--------------|----|-------------------|---------| | Make | | Registration | | Proprietor | | | UAY 705G | | 30/12/2015 | | Seeta | Victory | | Mitsubishi | Canter | | | Cathedral Limited | | | Truck | | | | | | | UAL 548U | | 17/03/2009 | | Seeta | Victory | | Mitsubishi | Fuso | | | Cathedral Limited | | | Model FK | | | | | |


| UAX 371X | | 02/10/2015 | Seeta | Victory | | |----------------|------|------------|-------|-------------------|--| | DAF LF45 Truck | | | | Cathedral Limited | | | UAY | 893P | 24/03/2016 | Seeta | Victory | | | Mitsubishi | | | | Cathedral Limited | | | Canter Truck | | | | | |

- 7.4.6. The date of incorporation for the 1st Applicant (Seeta Victory Cathedral Limited) as per the Certificate of Incorporation attached and marked AF2 to the Affidavit in rejoinder to the 1st Respondent's Affidavit in Reply to the 1st Applicant's affidavit filed in court on 27th March, 2024, is to the effect that the1st Applicant was incorporated on 6th June, 2017. This therefore means that by the time of acquisition and registration as per the log books the 1st Applicant was not a legal entity. It was not a body corporate. It was nonexistent. The 1st Applicant did not adduce the sale agreement to display concrete proof as who actually purchased the said motor vehicles, in the absence of such evidence and having found that the motor vehicles were acquired before the 1st Applicant came into existence, I find that the motor vehicles belonged to the 1st and 2nd Respondent and are subject to execution. - 7.4.7. The applicants did not adduce evidence in form of the Memorandum and Articles of Association of the 1st Applicant to ascertain who the promoters of the church were before registration on 6th June, 2017. However, the 1st Applicant recognised that the 2nd Respondent was a Senior Pastor of the church and 1st Respondent participated in the solicitation of funds towards the establishment of the church. - 7.4.8. In addition to above findings, according to the Resolution in the matter of Seeta Victory Cathedral Limited executed on 2nd September, 2022 and filed with URSB on 8th September, 2022, I observed that the 2nd Respondent *( Henry Nyanzi is one of the*


*Directors)* of the 1st Applicant. No wonder he did not file an affidavit in reply.

- 7.4.9. The 1st Applicant is therefore not an aggrieved entity. For whatever reason, the properties in which are subject to execution (motor vehicles) were somewhat registered in the names of the 1st Applicant before incorporation, it was a non-existent entity. The proof adduced is that the 1st Applicant was incorporated on 6th June, 2017. The properties were acquired before the 1st applicant came into existence. Therefore, less of any proof the property belongs to the 1st and 2nd Respondent. - 7.5. Land comprised in Kyaggwe Block 110 and Plot 3942 at Seeta - 7.5.1. The Certificate of Title marked **AF1 "a"** attached to the affidavit in Rejoinder to the 1st Respondent's affidavit in reply to the 1st Applicant's affidavit is to effect that the 2nd Respondent acquired this land on 28th February, 2012 Instrument No. MK 0132558 land comprised in Seeta, Kyaggwe County, Block 110 Plot 3492 measuring 0.186 Hectares. - 7.5.2. Land Comprised in Kyaggwe Block 110 Plot 3493 at Seeta, the Registered Proprietor is the 2nd Respondent, date of registration 4th November, 2008 Instrument No. MK098207 measuring approximately 0.345 Acres. - *7.5.3.* According to Paragraph 8 of the Affidavit in support of Notice of Motion by the 1st Applicant sworn by Amanya Francis he averred that, *"the Church is also the owner of land comprised in Kaggwe Block 110 Plots 3492 and 3493 Land at Seeta although it's currently registered in the names of the 2nd Respondent as a trustee, being a Senior Pastor of the church because by that time the church had not been duly registered and as such, it couldn't hold any property and all developments thereon were as a result of the continuous contributions of the church members".*

- *7.5.4. The 1st Applicant through her deponent Amanya Francis, further stated under paragraph 9 of his affidavit in support that it is well within the knowledge of the 1st Respondent, as a former wife of Senior Pastor for a period of 25 years that the property that she is attempting to attach in execution of decree is church property and all the developments thereon were made possible by contributions of the church members because at all material times. She was present at solicitations programmes and various church fundraising events.[emphasis mine].* - 7.5.5. I intend to consider the above 2 paragraphs were the 1st Applicant avers that the church could not hold any property and secondly that the 1st Respondent was fully aware having been married to the 2nd Respondent for 25 years. In her paragraph 8 of affidavit in reply to the 1st Applicant's affidavit in support of the application, the 1st Respondent averred that, *'the properties that the 1st applicant is claiming are properties belonging to the 2nd which were acquired by their joint contribution during the subsistence of the marriage including the land where the 1st applicant is based".* If indeed the land belonged to the church, evidence by way of transfer like all the other properties the applicants have adduced would have transferred into third parties but since 2012 and 2008 respectively, the said land has never been transferred. It therefore belongs to the 2nd Respondent and not the 1st Applicant. It is subject to execution. - *7.5.6. Under paragraph 5 of the Affidavit of Nyanzi Jimmy in support of the Notice of Motion by the 5th Applicant, he averred therein that; "I, my siblings together with the 2nd Respondent (who is as our father) are the registered proprietors and therefore the lawful joint owners of the land comprised in Kyaggwe Block 101 Plot 2483 Land at Misindye & Sonde having got registered as joint proprietors on 13th June, 2017 at*


*10:51 AM vide Instrument No. MK000043164 because the property was obtained during the subsistence of the marriage between our mother and the 2nd Respondent and the property was lawfully transferred as our share and in agreement as the children both of the marriage between the Respondents therein.*

- 7.5.7. I find falsehoods in this averment, when the 5th Applicant states that their mother was married to the 2nd Respondent yet at the same time, he confirms that the respondents' marriage existed from 28th February, 1988 until 5th April, 2019 when court endorsed the decree absolute. At the same time a close look at the certificate of title reflects that it was first in the names of the Administrators of the Estate of the late James Bisaso under Administration Cause No. 55 of 1997 registered on 14th September, 2011, then transferred to Pastor Henry Nyanzi on 15th March, 2012 Instrument No. MK0133026 and then transferred to Pastor Henry Nyanzi, the 3rd, 4th, 5th and 6th Applicants. This title does not reflect any names of Pastor Henry Nyanzi and their would have been mother. The 1st Respondent is not the mother of the 3rd through the 6th Applicants. Furthermore, any allegations that the land belonged to the mother of the 3rd-6th Applicants then they would have adduced evidence which they failed to do. - 7.5.8. This property is subject to execution in as far as the share of the 2nd Respondent, Henry Nyanzi is concerned. The share of the 2nd Respondent in regard to this particular property should be divided in equal share with the 1st Respondent and it is subject to execution. - 7.5.9. To sum up this issue, the 1st, 3rd through the 6th Applicants are not aggrieved parties. - 7.6. The 2nd Applicant has not adduced the Certificate of Title for land comprised in Block 165 Plot No. 2352 land at Namataba Kyaggwe

but instead there is a statement of search as at 17th March, 2019 addressed to the 2nd Respondent indicating that the land is registered in the names of 2nd Applicant under Instrument No. MKO-00044133 registered on 05th July, 2017. The 2nd Applicant is therefore an aggrieved party.

7.7. The Applicants contend that there is an error apparent on the face of the record as properties belonging to them were adjudged matrimonial property to be distributed to the 1st Respondent. In the case of **Edison Kanyabwera Vs Pastori Tumwebaze, Supreme Court Civil Appeal N0. 6 of 2004**, it was held that*; "in order that an error may 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 it is not limited to matters to fact and includes also an error of law".*

Subject to the provisions of **Section 59 of the Registration of Titles Act, Cap. 230,** possession of a certificate of title by a registered proprietor is conclusive evidence of ownership of the land described therein. I therefore, find that Block 165 Plot 2352 Land at Namataba is not subject to attachment or execution.

- **8.0.** Issue No. 7: **Whether the Orders which were granted by this Honorable Court vide Divorce Cause No. 111 of 2017 can be set aside?** - 8.1. This court has read the judgement of the trial judge in Divorce Cause No.111 of 2017 regarding the Matrimonial Property wherein he decreed that *"Therefore all property registered in the names of the petitioner and respondent between 28th February, 1988 until the 5th day of April 2019 when this court endorsed the decree absolute constitute matrimonial property belonging to*


## *both the Petitioner and Respondent and should be shared in accordance with the decision in Julius Rwabinumi Versus Hope Bahimbisomwe SCCA 10/2009"*

- 8.2. As indicated above, the trial judge was clear in stating which property was subject to distribution. I do not find it necessary given my findings herein above to set aside the decree. - 8.3. Regarding the current application, there was no mistake or error apparent on the face of the record but only in the 1st Respondent's interpretation of the said judgement and decree. - 8.4. This application partly succeeds to the extent of attachment of property comprised in Kyaggwe Block 165 Block 2352 land situate at Namataba belonging to the 2nd Applicant.

## **9.0. Conclusion:**

- 9.1. Consequently, I therefore find as follows: - i. The Application partly succeeds to the extent that the attachment of property registered and comprised in Kyaggwe Block 165 Block 2352 land at Namataba belongs to the 2nd Applicant and is not subject to execution. - ii. The application to set aside the Judgment and Decree granted by this court on 4th March, 2022 vide Divorce Cause No. 111 of 2017 is declined. - iii. Land comprised in Kyaggwe Block 110 Plot 3493 and Block 110 Plot 3492 at Seeta, Registered Proprietor Henry Nyanzi is subject to attachment and execution. - iv. Motor Vehicles Registration No. UAY 705G Mitsubishi Canter Truck, UAL 548U Mitsubishi Fuso Model FK, UAX 371X DAF LF45 truck and UAY 893P Mitsubishi Canter Truck for reasons herein mentioned above are subject to attachment and execution.


- v. Land comprised in Kyaggwe Block 101 Plot 2483 at Misindye & Sonde Instrument No. MKO-00043164 Registered on 13th June, 2017 measuring approximately 0.703 Hectares, Registered Proprietors Pastor Henry Nyanzi, Kasibante Rogers, Nyanzi David, Nyanzi Jimmy and Namagembe Irene is subject to execution to the extent of Henry Nyanzi's share. - vi. No costs awarded.

*I so order.*

## *Dated, signed and delivered by email this 21st day of May, 2024.*

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ CELIA NAGAWA JUDGE**