Kibira v Kiryowa (Miscellaneous Application 3763 of 2023) [2024] UGHCLD 167 (19 June 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

MISC APPLICATION NO. 3763 OF 2023

(ARISING FROM MISCELLANEOUS APPLICATION NO. 84

OF 2022)

(ARISING FROM CIVIL SUIT NO.0132 OF 2018)

KIBIRA LILLIAN PATRICIA ::::::::::::::::::::::::::: APPLICANT VERSUS

KIRYOWA SANYU ::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING

*Introduction;*

- 1. Kibira Lilian Patricia herein after referred to as the applicant brought this application against Kiryowa Sanyu herein after referred to as the respondent under Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules for orders that: - i) The Ruling and Orders of the 7th day of October 2022 by this Honorable Court setting aside the default

judgment in C. S No. 132 of 2018 and stay of execution arising from M-A. No. 84 of 2022 be reviewed.

ii) The costs of the application be provided for.

*Background;*

- 2. The applicant was the defendant in Civil Suit No 132 of 2018 filed by the respondent for recovery of UGX 75,000,000/=. A default judgment was entered against the applicant. - 3. The applicant filed MA No.82 of 2022 against the respondent seeking for several orders including stay of execution and leave to appear and defend Civil Suit No.132 of 2018. By the ruling of Hon. Justice David Matovu on the 7th day of October,2022, the application was granted with specific orders. It is against this background that the applicant brought this application for review.

*Applicant's evidence;*

- 4. The application is supported by the affidavit of Kibira Lillian Patricia the applicant and briefly states as follows: - i) The Applicant was the defendant in Civil Suit No. 132 of 2018 filed by the Respondent in this Honorable

Court alleging recovery of Ugx. 75,000,000/- arising from a falsified memorandum of understanding for a loan, and without service of legal process upon the applicant a default Judgment and Decree were entered against the applicant.

- ii) As a result of the default judgment and decree, a warrant of attachment of the applicant's immovable property was also issued to which a resultant order for the issuance of special certificates of title for Kyadondo Block 185 Plots 6099 and 6101 was issued. - iii) That it was at the stage of execution that the applicant learnt of the whole ploy, and upon learning this, the applicant petitioned court to set aside the default judgment and decree in Civil Suit No. 132 of 2018, the execution decree arising from it therein; release property contained in Kyadondo Block 185 Plots 6099 and 6101 from attachment and or execution; reverse the order for issuance of special certificates of title for Kyadondo Block 185 Plots 6099 and 6101; to nullify and set aside the purported sale of property comprised in Kyadondo Block 185 Plots 6099 and 6101; reverse and set aside the order

vesting and registering the property in a one Mubiru Henry Musobya; restoration of title to applicant as registered proprietor of land comprised in Kyadondo Block 185 Plots 6099 and 6101 and an unconditional grant for leave to appear and defend Civil Suit No. 132 of 2018.

- iv) That on the 7th/l0/2022, this honorable court allowed MA 84 of 2022 setting aside the default judgment in C. S No. 132 of 2018 and staying any execution arising from the same. - v) That however, this honorable court remained silent on the other orders so sought especially the order of grant of unconditional leave to appear and defend C. S No. 732 of 2018. - vi) That the applicant is aggrieved by being unable to file her defense in Civil Suit No. 132 of 2018 and shall suffer irreparable loss if no pronouncement is made by this honorable court on whether or not unconditional leave is granted to appear and defend Civil Suit No. 732 of 2018.

*Representation;*

5. The applicant was represented by Orikot Emmanuel of IBC Advocates whereas there was no representation from the respondent despite being served with the application. The applicant filed his affidavit and submissions which I have considered in the determination of this application.

*Issues for determination;*

*i) Whether the applicant has sufficient grounds for review?*

*Resolution and determination of the issue;*

Issue; *Whether the applicant has sufficient grounds for review?*

- 6. I have perused the record in MA No 84 of 2022 together with the submissions, application and supporting affidavit and I will proceed to determine the matter in light of the same. Applications for review are governed by Section 82 (a) of the Civil Procedure Act and Order 46 of the Civil Procedure Rules. - 7. *Section 82 of the Civil Procedure Act* which governs applications for review of court orders/judgments provides

as follows;

Any person considering himself of herself aggrieved–

- i) By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or - ii) 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. - 8. *Order 46* of the Civil Procedure Rules complements the above section by providing for the considerations when granting an application for review. It provides as follows; Any person considering himself or herself aggrieved– - i) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or - ii) by a decree of court 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 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, desire to obtain a review of the decree passed or order made against him or her, may apply for review of judgment to the court which passed the decree or made the order." The above considerations were reiterated in the case of *Re Nakivubo Chemists (U) Ltd (1979) HCB 12.*

- 9. In the instant case, the basis of the applicant's case is that there is an error apparent on the face of the record in MA 84 of 2022. - 10. Counsel for the applicant argued that court pronouncing itself on some orders and omitting to pronounce itself on other orders where counsel for the respondent in Misc. Application No. 84 of 2022 conceded to the application was an error apparent on the face of the record. That the applicant could not file a defense because no specific leave to appear and defend had been granted. - 11. That such error is an error apparent on the face of the record and that no court would permit such an error to stand. Counsel relied on Edison Kanyabwera v Pastori Tumwebaze Civil Appeal No.6 of 2004. - 12. I have read the application in Misc. Application No.84

of 2022 and the applicant sought for the following orders:

i) Default judgment and decree in Civil Suit No.132 of 2018 be set aside.

ii) Execution decree in Civil Suit No.132 of 2018 be set aside.

iii) Property comprised in KYADONDO BLOCK 185 PLOTS 6099 and 6101 be released from attachment and or execution.

iv) The order for issuance of special certificates of title for KYADONDO BLOCK 185 PLOTS 6099 and 6101 by the 2nd respondent be nullified and set aside.

v) The order vesting and registering property in a one MUBIRU HENRY MUSOBYA be reversed and set aside.

vi) Restoration of the applicant as Registered proprietor of land comprised in KYADONDO BLOCK 185 PLOT 6101.

vii) The applicant be granted unconditional leave to appear and defend Civil Suit No. 132 of 2018.

13. I have read the record of proceedings before Justice. David Matovu it read as follows:

viii) Costs of the application be provided for.

*"I am satisfied that this is a proper application to be*

*allowed as indeed even Counsel for the Respondent vide his letter dated 12th August, 2022 conceded to the same. I hereby allow MA 84 of 2022 and set aside the default judgment in CS No. 132 of 2O18 and stay any execution arising from the same."*

- 14. It appears that court only pronounced itself on 2 remedial orders out of the 8 sought by the applicant. - 15. Further upon perusal of the letter dated 12th August 2022, Counsel for the respondent by his letter conceded to grounds 1,2,3 and 8 of Misc. Application 084 of 2022 and reserved the other grounds for determination in the main suit. - 16. An error apparent on the face of the record was defined *in Nyamogo & Nyamogo Advocates & Kago (2001) 2 EA 173* as follows: "Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may be conceivably two opinions can hardly be said to be an error apparent on the face of the record"

*17.* No error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it. *(See; Batuk K*

*Vyas v Surat Municipality AIR (1953) Bom 133.*

*18.* A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. *(See; Deox Tibeingana*

*v Vijay Reddy and Anor MA. 0519 of 2021)*

- *19.* In my view, court pronouncing itself on only two orders out of the 8 remedial orders sought for by the applicant where counsel for the respondent conceded to 4 grounds to the application stands out as error apparent on the face of the record. No reason was advanced for leaving out other orders which were in fact separate orders from the specified ones in effect. - *20.* In the circumstances there was an error apparent on the face of the record to warrant review of the said ruling and orders of court in MA 84 of 2022. - *21.* In consideration of the foregoing, I find that the ruling and orders of court in Misc. Application No. 84 of 2022 are hereby reviewed by maintaining the orders already granted, grounds 6 and 7 of MA 84 of 2022 are to be determined in

the main suit.

*22.* Therefore, court makes the following orders;

i) Execution decree in Civil Suit No.132 of 2018 is hereby set aside.

ii) The Property comprised in KYADONDO BLOCK 185 PLOTS 6099 AND 6101 is hereby released from attachment and or execution.

iii) The order to set aside and nullify the order for issuance of special certificates of title for KYADONDO BLOCK 185 PLOTS 6099 and 6101 by the 2nd respondent is not granted for there is no 2nd respondent in the matter.

iv) The applicant is hereby granted unconditional leave to appear and defend Civil Suit No. 132 of 2018.

v) No orders as to costs in this application.

I SO ORDER.

NALUZZE AISHA BATALA

JUDGE

19th/06/2024