[2023] UGHCFD 151

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **FAMILY DIVISION**

### **MISCELLANEOUS APPLICATION NO. 766 OF 2022**

#### **(ARISING FROM MISCELLANEOUS APPLICATION. NO. 455 OF 2022)**

#### **(ARISING FROM CIVIL SUIT NO. 005 OF 2018)**

## **(ARISING FROM ADMINISTRATION CAUSE NO. 1461 OF 2017)**

**SAMSON SSALI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### **1. MUSOKE HENRY**

- **2. TAMALE GODFREY ::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS** - **3. NALUGYA AIDA** - **4. MABELESI KIGUNDU**

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

#### **RULING**

## **1.0 Introduction.**

- 1.1 The Applicant, Samson Ssali, brought this Application by Notice of Motion under **Section 82 of the Civil Procedure Act, Cap. 71, Section 33 of the Judicature Act, Cap. 13 and Order 46 Rules 1 Civil Procedure Rules SI 71-1** seeking orders that; - 1. The ruling and orders of His Lordship Justice David Matovu dated 14th July, 2022 ordering the applicant to hand over the 3 certificates


of titles belonging to the estate of the late Suleman Kibikyo be recalled with a view having it reviewed and set aside.

- 2. Costs of the Application be provided for. - 1.2 The grounds of the application are summarized in the Notice of Motion and also set out in an affidavit sworn in support of the application by Samson Ssali, the applicant and another affidavit by Mulinde Godfrey a grandson. Briefly, the grounds are that; - a) There is a discovery of a new and important matter with regard to the 1st Respondent who leads the other respondents in that he is not a person of sound mind having had a stint at Butabika Mental Hospital on various times during his adult life and he is still on medication. - b) Even when his behavior is analyzed, the 1st respondent is totally lacking in reasonableness and conscionable conduct. For example, in March 2022, he led the respondents to attack the greenhouse of one Mulinde Godfrey and in the process destroyed both the greenhouse and the house under construction. He has since been charged with malicious damage to property at Kira Magistrate's Court. The respondents are not the type of people that can be entrusted with certificate of titles. - c) The signature of the 4th Respondent on the authority to swear an affidavit was scanned. This means that the application had no valid supporting affidavit. - d) Under the doctrine of approbation and reprobation, the respondents cannot blow hot and cold. They cannot sign documents authorizing transfer of land titles under S.134 of the RTA and then turn around and say they wish to possess land titles. Moreover, court is not a store for land titles. The application


is hence academic and unenforceable. It is designed to obstruct the lawful administration of the Estate.

- e) There is an error on the face of the record in that the Respondents did not show that since they got administration on 28th April, 2022, they never called any meeting or ever met the applicant. The court was hence misled to grant an order which should never have been made. - f) The affidavit in support of the application is based on lies. For example, it says that the 4th Applicant is a son while in actual fact, he is a grandson. - 1.3 The application was opposed by the 1st, 2nd and 3rd Respondents through an affidavit in Reply deponed to by Musoke Henry the 1st Respondent, with authorization to depone from the 2nd and 3rd Respondent, who stated that the instant application was based on malicious falsehoods, misrepresentation, misstatement, distortion of truth, deception, dissimulation and/ or equivocation. He stated that his counsel intended to raise various preliminary objections in so far; - i) The contents of the affidavit being to argumentative contrary to the requirements of the law. - ii) The application is incompetent, incurably defective, the application is frivolous, vexatious, misconceived, bad in law, a total abuse of Court process and would pray that the application be dismissed with costs to the respondents. - iii) There are no legally justified grounds upon which the application is premised. - 1.4 He further stated that there are no circumstances to warrant the review of the order made in Miscellaneous Application No. 455 of 2022 as alluded to and that with this application court should exercise its


discretion and have it dismissed with costs to the respondents. The deponent also averred that the applicant did not attach a handwriting expert report to prove that the 4th Respondent's signature was scanned and the said issues were never raised by the applicant in his affidavit in reply to Miscellaneous Application No. 455 of 2022. The deponent believed that there is no discovery of new and important matter, no medical evidence was attached to prove that he is mentally disturbed and the alleged averments are irrelevant in the instant application. He further stated that there is no mistake on the face of the record and the court's ruling in Miscellaneous Application No. 455 of 2022 is not academic. He averred that the applicant should have appealed against the said order in Miscellaneous Application No. 455 of 2022 rather than filing the instant application.

- 1.5 He concluded that this Honorable Court ordered for the 3 certificates of title to be produced and following his refusal to have them deposited he continued with the subdivision of the said estate of the late Sulaiman Kibikyo. - 1.6 The applicant filed an affidavit in rejoinder whose contents I have also taken into consideration.

## 2.0 **Brief Background**

- 2.1 The Applicant is one of the Administrators of the Estate of his Late father Suleiman Kibikyo. The 1st, 2nd and 3rd Respondents are his siblings and his co-administrators to the estate of the deceased. The 4th Respondent is a grandson of the deceased. They all became administrators of the estate of the deceased by consent of the parties on 29th April, 2022. - 2.2 The Respondents filed Miscellaneous Application No. 455 of 2022 seeking for an order directing that the applicant to surrender the 3 Certificates of


Title belonging to the Estate of the late Kibikyo Suleiman to this Honorable Court within a period of one month from 14/7/2022. The said order was granted by this Honorable Court with no orders as to costs but the applicant refused to comply.

# 3.0 **Representation and Hearing.**

At the hearing, the Applicant was represented Mr. Sengooba John Fisher of M/S Sengooba & Company Advocates, while the 1st, 2nd and 3rd Respondents were represented by Mr. Edward Bamulutira of M/S B Edward & Company Advocates, together with Ms. Alice Mwebaza. It was agreed that the hearing proceeds by way of written submissions which were duly filed and have been considered in the determination of this application.

## 4.0 **Preliminary Objection**

The 1st, 2nd and 3rd Respondents raised Preliminary Objections which this court has taken consideration of. The submissions of the respondents counsel are that this application ought to be dismissed. Nevertheless, for completeness and in the interest of justice, I will proceed to consider the application on its merits.

## 5.0 **Issues for Determination by Court.**

- 5.1. There is only one issue for determination by the Court namely; **whether there are sufficient grounds for Review?** - 5.2. Counsel for the Applicant submitted that the Application was premised on the grounds of discovery of new and important matter of evidence and sufficient reason. On the ground of discovery of new and important matter of evidence, counsel submitted that as a matter of evidence, the applicant discovered that the 1st Respondent has a history of mental illness and


instability and he is a patient at Butabika Mental Hospital. This is a discovery of new and important matter. He further stated that it is trite law that an illegality once brought to the attention of court cannot be ignored. Counsel for the applicant therefore prayed that the order should be recalled with a view of having it declared null and void and reviewed hence this application for review of the said order to prevent mischief and irreparable harm to the estate.

Counsel cited **Order 46 Rule (1) (b) of the Civil Procedure Rules SI-71- 1** and the case of **Re Nakibubo Chemist (U) Ltd [1979] HCB 12** on aggrieved person. Counsel submitted that the applicant is the customary heir of the late Suleiman Kibikyo aged more than 85 years of age and he has kept the land titles for more than 20 years. That the applicant is the lead administrator of the estate who was chosen after being trusted by family members. The applicant desires that the estate is properly administrated because he has a name to protect and has a share in the estate. The estate has already been distributed and himself was left on more than 3 acres by the deceased, according to him the respondents are telling lies and trying to mess up the estate hence making him an aggrieved person and therefore the application is properly before this court.

5.3. Counsel for the applicant submitted further on discovery of a new and important matter, mentioning that the 1st respondent is a habitual criminal, the respondents do not deserve any equitable relief and relied on Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act. He further stated that the executor or administrator as the case may be of a deceased person is his or her legal representative for all persons and all property of the deceased person vests in him or her as such".


5.4. On the ground of sufficient reason, counsel for the applicant argued that the respondents filed the application for the land titles to be deposited in court, the applicant opposed the application stating that this Honorable Court is not a store for land titles. This is reflected under paragraph (iv) of the grounds for the application and paragraph 8 of the affidavit in support of the motion.

#### **6.0. Submissions by Counsel for the Respondent.**

- 6.1. For the 1st, 2nd and 3rd Respondents in Reply, it was argued that the grounds of the application are outside the scope of review and do not provide sufficient grounds to warrant a review. Counsel cited **Section 82 of the Civil Procedure Act and Order 46 (1) of the Civil Procedure Rules** and the position reiterated by **His Lordship, Oder, JSC** in the case of **Edson Kanyabwera Versus Pastori Tumwebaze SCCA No. 06 of 2004** on the grounds that warrant a review. - 6.2. Counsel submitted that there are no grounds upon which this Honorable Court should review the order in Miscellaneous Application No. 455 of 2022. His submissions were supported by the fact that there is no discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made. The applicant being a biological brother to the 1st Respondent claims that the 1st Respondent is mentally disturbed and if indeed that is true then the applicant knew about it all along and it cannot be new and important matter of evidence. Additionally, this piece of evidence is not supported and has no value at all to the instant application. The same applied to the respondents being habitual criminals in that it makes no

 sense nor fact in regard to the Order granted in Misc. Application No. 455 of 2022.

- 6.3. Lastly, counsel for the 1st, 2nd and 3rd Respondent, submitted that the Certificates of title were still in possession of the Applicant, who eventually lodged them to the land registry and the said action is reflected on the certificates of title attached to the affidavit in reply as indicated, that this was done after 14th July, 2022 when the Order in Miscellaneous Application had been granted. Counsel concluded that the applicant has not sufficiently established grounds to warrant a review of the ruling of this court. He prayed that the application should be dismissed with costs. - 6.4. In determination of this application, I evaluated and examined both parties' affidavit evidence and the documentary evidence, as required by law.

# **7.0. Determination by the Court.**

- **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. The consideration for the grant of an application for review of judgment, decree or order are set out under **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: - i) That there is a mistake or manifest or error apparent on the face of the record. - ii) 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. - iii) That any other sufficient reason exists.


7.4. In the Case of **Edison Kanyabwera Versus Pastori Tumwebaze, SCCA No. 06 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 not limited to matters to fact and includes also error of law".

# **8.0. Resolution.**

# **An Error Apparent on the Face of the Record.**

8.1 The applicant relied on the ground of illegality stating that the affidavit in support of the application by the 4th defendant had a scanned signature and therefore the 1st Respondent was never authorized to bring the application. He also argued that the affidavit in support of the application was full of falsehoods. Counsel for the applicant argued that this was an error apparent on the face of the record. To this effect, this court finds that this does not fall within the ambit of what is referred to as an error on the face of the record.

## **Discovery of a new and important matter.**

8.2 The applicant submitted to court that it had been discovered that the applicant had been admitted to Butabika Mental Hospital and he is therefore not a person of sound mind. He argued that the 1st Respondent who leads the other respondents is not a person of sound mind having had a stint at Butabika Mental Hospital at


various times during his adult life and is still on medication. Counsel argued that this was a new and important matter discovered.

- 8.3 This court finds that the new and important matter discovered should affect the ruling in Review substantially. In this case, counsel needed to present evidence as to the 1st Respondent's mental capacity such as a report from a Psychiatrist. Mental incapacity is not simply alleged; it a science subject to medical examination and it must be proved. It is trite law that in all civil matters, he who alleges bears the burden to prove his/her case on a balance of probabilities. The Applicant in this case by virtue of **Section 101, 102 and 103 of the Evidence Act, Cap.6** has the burden to prove the facts alleged by him in not only the application but also in the supporting affidavit as well. Section 101 of the Evidence Act provides that; **"Whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of the facts which he or she asserts must prove that those facts exist".** - 8.4 There is lack of any medical evidence to prove the alleged mental incapacity. Furthermore, the applicant did not present any evidence as to how this affected the hearing of the application and the decision of this court. In fact, all the applicant's counsel's arguments and grounds in support of this application such as the 1st Respondent being a criminal, the Respondents not being deserving of equitable relief and the order being academic are merely argumentative and not in line with the Law on Review. - 8.5 Review is not a tool to be used by litigants to reargue their case and fix mistakes or overlooked points of argument. The process of reviewing a court judgment is an essential element of a fair and just legal system. The review of court judgments serves several crucial purposes that contribute


to the overall integrity and effectiveness of the legal process. It ensures that justice is upheld and errors are corrected. The Review process considers human fallibility as mistakes may be made due to various factors. Allowing for a review of court judgments acknowledges that errors can occur and provides a mechanism to rectify these errors. It also considers the fact that new evidence that was not available during the original application may come to light. Allowing a review enables the presentation of this new evidence, which could potentially alter the outcome of the case.

8.6 The applicant presented no new evidence that could alter the outcome of the original application. The respondent as argued that this application was to court to grant an order to stop the applicant from his fraudulent attempts which were not beneficial to the beneficiaries in respect to their shares. This court finds that the applicant did not prove any of the grounds for Review.

# **9.0. Conclusion.**

- 9.1. In the final result, the application has been found to be both incompetent and devious of any merit. I therefore decide as follows; - 1. The application to review and set aside the ruling and orders of His Lordship Justice David Matovu dated 14th July 2022 is hereby dismissed. - 2. Miscellaneous Application 764 of 2022 on Stay of Execution pending Review and Miscellaneous Application 765 of 2022 for an interim order of stay of Execution pending the substantive application for Stay of Execution are hereby dismissed following the determination of this Application.


3. Costs for this application, together with any costs incurred in Misc. Application No. 764 of 2022 and Misc. Application No. 765 of 2022 are awarded to the 1st, 2nd and 3rd Respondents.

*Dated, signed and delivered by email this 31st day of August, 2023*