[2025] UGHC 523

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT-01-LD-CR-0006-2017 (ARISING FROM REVISION CAUSE NO. 10 OF 2016) (ARISING FROM CIVIL SUIT LD 27 OF 2012) THE OMUKAMA OF TOORO :::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS ALLAN BRIGHT KAGORO :::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

# **Background**:

1. This matter has a checkered history. Originally, the Respondent filed Civil Suit No. **FPR-00-LD-CS-0027 of 2012** in the Chief Magistrate's Court of Fort Portal at Fort Portal against Tooro Kingdom and Tooro Land Board. In that suit, the Respondent sought a declaration that he was the lawful/bonafide occupant of the suit land. Tooro Kingdom and Tooro Land Board filed a Written Statement of Defense, asserting that they were the registered proprietors of the suit land comprised in Freehold Register Block 72, Plots 30 and 31, land at Harukoto.


However, they failed to appear in court on several hearing dates, leading the matter to proceed ex parte against them. At the conclusion of the ex parte trial, the trial magistrate entered judgment in favour of the Respondent, declaring him the lawful/bonafide owner of the suit land. The Respondent was also awarded general damages of Ug. Shs. 8,000,000/=, punitive damages of Ug. Shs. 4,000,000/=, costs of the suit, and 20% interest on the general damages.

- 2. Subsequently, vide **Miscellaneous Application No. 10 of 2016**, the Applicants sought to review the aforementioned decision of the learned trial magistrate. The grounds for review were that the judgment and orders were tainted with illegality and offended the mandatory provisions of **Section 16** of the **Land Reform Decree**, as the Respondent purported that Fort Portal Municipal Council had the authority to grant him a lease in 1992. The Applicants contended that this error was known to the Respondent and his agents but was nonetheless endorsed by the court. The learned trial magistrate, however, declined to grant the Application and dismissed it with costs. - 3. Having been unsuccessful in the Application for review before the trial court, the Applicant then filed an Application purportedly for Revision, vide **Revision Cause No. 016 of 2016**. This Application was supported by an affidavit from *Benjamin Gusaalire*. The grounds for the Application were, briefly, that it was


apparent on the face of the record that the judgment and orders were tainted with illegality and offended the mandatory provisions of **Section 16** of the **Land Reform Decree**, **Section 48** of the **Civil Procedure Act Cap 71**, **Section 176** of the **Registration of Titles Act, Cap 230**, and **Section 207** of the **Magistrates Courts Act Cap 16**. Revision Cause No. 016 of 2016 was heard and determined by the *Hon. Justice Oyuko Anthony Ojok*. In his Ruling dated 4 th October 2017, following a preliminary objection raised by the Respondent, the learned trial Judge stated that he had perused the entire file and found no valid Power of Attorney authorizing *Benjamin Gusaalire* to act on behalf of the Applicant. Furthermore, that there was no appointment letter or correspondence to prove that he was an adviser of the Applicant. Consequently, the learned trial judge allowed the preliminary objection and dismissed the entire Application with costs, stating that the Application was left *"hanging without any Affidavit in Support."* In dismissing the Application, the learned trial judge relied on the case of **Ms. Tereza Beatrice Nalumaga Nyaika vs. Prince Patrick Olimi Kaboyo, HCCS No. MFP-12 of 1990**, where a *Mr. Mugenyi* was found to be without *locus standi* to represent the Defendant because he had no valid Power of Attorney.

4. The Applicant now contends that there is an error apparent on the face of the record in Revision Cause No. 016 of 2016, specifically concerning the trial


judge's application of the authority of **Tereza Beatrice Nalumaga vs. Prince Patrick Olimi Kaboyo, HCCS MFP 12/1990**, to dismiss the Revision Application. The Applicant argues that the said case pertains to the power to represent, not the power to testify, which was the issue in **Revision Cause No. 016 of 2016**. They further assert that the law does not require any person to procure a power of attorney before giving oral or written evidence before a court of law. Additionally, the Applicant claims there is an error apparent on the face of the record as the written Application of 29th August 2016, for Revision by letter before the High Court (subsequently given the number 10/2016) was mistaken for the written Application for Review of 10th March 2016, before the Chief Magistrate's Court, which also bore the number 10. Lastly, the Applicant submits that there is sufficient cause for the court's intervention, as the Respondent's substantive case is founded on the illegality of want of jurisdiction by the initial court and a myriad of other illegalities, which cannot be sanctioned by the Court. It is on the basis of these grounds that the Applicant brought the instant Application by Notice of Motion under Section 82 and 98 of the Civil Procedure Act, Section 33 of the Judicature Act, and Order 46 Rules 1, 2, and 8 of the Civil Procedure Rules. The Applicant seeks the following orders:

#### (1)**An Order for the review of its Ruling herein of 4 th October, 2017.**


- (2)**An Order setting aside its Ruling of 4 th October 2017, and entering the following Orders:** - **(a)The Ruling of the Chief Magistrate of 3 rd July 2016, and all Orders thereunder are set aside.** - **(b)The Ruling of the Grade 1 Magistrate of 18th May, 2015, and all the Orders thereunder are set aside.** - **(c) Any rights of proprietorship and vacant possession claimed in the suit property and formerly attached property purported to be held or acquired by the Respondent and/or any other parties deriving from proceedings in this suit in reliance on, express notice, and/or knowledge of illegalities are voided and re-vested in the Applicant.** - **(d)The Applicant is granted costs of this Application, the Revision, and those of the courts below.** - 5. The Respondent opposed the Application through the Affidavit in Reply of his Counsel, *Ms. Ruth Aliguma Ongom* of *M/s Kaahwa, Kafuuzi, Bwiruka & Co. Advocates*. In her Affidavit in Reply dated 31st October, 2018, *Ms. Ruth Aliguma Ongom* mainly recounted the history of this dispute as stated hereinabove. She further stated that this Application is overtaken by events since the execution by attachment and sale of Block 73 Plot 20 Mutalesa Road Fort Portal Municipality


in **FPR-00-LD-CS-0027 of 2012** is already complete. Moreover, she argued that there are no sufficient grounds for review of the Ruling of the Court made on 4 th October 2017, and that this Application is a disguised appeal which is not tenable. She concluded that this Application is incompetent, devoid of merit, frivolous, vexatious, an abuse of court process, and that the same should be dismissed with costs.

#### **Representation and Hearing**:

- 6. Mr. Timothy Atuhaire appeared for the Applicant while Mr. Richard Bwiruka appeared for the Respondent. I critically perused the record of this Court and found that when the matter came up for hearing on September 11, 2019, in the presence of Counsel for both parties, the Court issued the following directions: - (a) The Applicant to file an Affidavit in Rejoinder on or before 16th September 2019. - (b)Counsel for the Applicant to file written submissions on or before 23rd September 2019. - (c) Counsel for the Respondent to file written submissions on or before 30th September 2019. - (d)Counsel for the Applicant to file submissions in Rejoinder on 3 rd October 2019.


7. The parties did not comply with the said directions as issued by the Court. Learned Counsel for the Applicant has never filed written submissions, while learned Counsel for the Respondent filed submissions on 8 th July 2020. In their written submissions, Counsel for the Respondent submitted that there is no error apparent on the face of the record in the Ruling and Orders of the learned trial judge to justify an Application for review. They argued that the point raised by the Applicant is not an error apparent on the face of the record but is a ground of appeal which cannot be determined in this Application, and that this Application is a disguised appeal which should be dismissed with costs. Counsel referred me to the case of **Paul Kasagga & Another vs. Barclays Bank (U) Ltd [2009] KALR 531**, which cited with approval the case of **Nyamongo & Nyamongo Advocates vs. Kogo (2001) EA 173**.

### **Issues**:

- 8. I find the following issues pertinent to the determination of this application: - (1)**Whether the Applicant has presented sufficient cause warranting a review of the Ruling and Orders in Revision Cause No. 016 of 2016.** - (2)**What remedies are available to the parties?**

# **CONSIDERATION BY COURT**:

9. **Section 82 of the Civil Procedure Act Cap. 282** provides that:


**7 |** P a g e *"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 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 it thinks fit."*

10.**Order 46 Rule 1 and 2 of the Civil Procedure Rules** also provides as follows; *"1. Application for review of judgment.*

*(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."*

- 11.**Section 82** and **Order 46 Rule 1** above limit the **locus standi** for purposes of review to a person aggrieved by a decision of Court. In **Re Nakivubo Chemists (U) Ltd [1979] HCB 12** court guided that an aggrieved party for purpose of review is one who has suffered a legal grievance. *Justice Karokora JSC* (as he then was) in **Muhammed Bukenya Allibai vs. W. E Bukenya & Anor, SCCA No. 56 of 1996** defined an aggrieved party as a party who has been deprived of his property or whose right has been affected by the impugned judgment. - 12. The grounds for review are provided for under **Order 46 of the Civil Procedure Rules** which are; (a) discovery of new and important evidence which could not be produced during trial, (b) That there is some mistake or error apparent on the face of the record (c) any sufficient cause. The Applicant contends that there is a mistake apparent on the face of the record which needs to be reviewed and corrected. In **Levi Outa vs. Uganda Transport Company [1995] HCB 340**, Court noted thus;

*"the expression 'mistake or error apparent on the face of the record refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit*


*such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment."*

## 13. In **Mr. Satis Kumar vs. Chief Secretary, RA No. 51 of 2013**, court observed thus;

*"The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of facts or the legal position. If the error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be an error apparent on the face of the record for purposes of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of law or fact."*

14. A mistake or error apparent on the face of the record must be glaring on the face of the court record. It should not require an extensive evaluation of the law and the evidence in order to find and see it. It should not be about the legality or validity of the judgment or decision of court in relation to the laws applicable on the merits. Its resolution should not result in the court sitting as an appellate court to examine the legality and correctness of its own decision, which is a preserve


of the appellate court. (See: **Bamugaya Deo vs. Peter Tinkasimire & Anor, HCM No. 90 of 2018**).

14. In the instant case, the Applicant's argument revolves around the trial judge's Application of the **Tereza Beatrice Nalumaga vs. Prince Patrick Olimi Kaboyo (supra)** case. The Applicant claims this case was misapplied because it deals with the **power to represent** rather than the **power to testify**. The Applicant asserts that *Benjamin Gusaalire* was providing evidence through an affidavit, not representing the Applicant in the traditional sense, and therefore a power of attorney was not required. To determine whether this constitutes an "error apparent on the face of the record," the Court must consider if the alleged error is so obvious and self-evident that it does not require extensive argument or a re-evaluation of the legal position. If rectifying the error necessitates a detailed examination of the legal nuances of representation versus giving evidence, or if it implies that a different view could have been taken by the previous court on a point of law, then it might fall outside the scope of an "error apparent" and into the realm of an appeal. In my view, the Applicant's argument delves into the interpretation of legal principles and the distinction between a power to represent and the capacity to give evidence thereby falling outside the scope of an "error apparent" and falling into the realm of an appeal.


- 15. Furthermore, the Applicant stated that the Respondent's substantive case is founded on illegalities, including want of jurisdiction, and that these illegalities cannot be sanctioned by the Court. However, the grounds for review are specifically limited. While the presence of an illegality is a serious matter, the question for review is whether the illegality is an error *apparent on the face of the record* of the specific Ruling being sought for review (the 4th October 2017 Ruling) and not the underlying legality of the original suit. A review is not an avenue for a general re-hearing of the entire matter on its merits or to correct every perceived error in the lower courts, but rather to correct specific types of errors in the judgment sought to be reviewed. The Applicant's contention that the underlying suit is founded on illegalities, is a matter that should have been exhaustively pursued through the appellate process, not through a review application that focuses only on errors "apparent on the face of the record" of the revision Ruling itself. The scope of review is narrow and is not designed to rectify all perceived injustices or legal errors that may have occurred in the original proceedings or previous applications. - 16. In light of the above analysis, it is clear that the Applicant's grounds for review do not fall within the strict ambit of an "error apparent on the face of the record" as defined by established legal principles. The arguments presented necessitate a


deeper examination of legal interpretation and distinctions, which is characteristic of an appellate process rather than a review. Therefore, the Applicant has not presented sufficient cause warranting a review of the Ruling and Orders in Revision Cause No. 016 of 2016. This Application for review is therefore hereby dismissed with costs to the Respondent.

I so Order.

## **Dated at Fort Portal this 1st day of July 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on 14th July 2025**