Libyan Arab (U) Bank for Foreign Trade & Development v Vassiliadis (Civil Application 42 of 1992) [1993] UGSC 49 (12 January 1993)

IN THE SUPREME COURT OF USANDAME COURT LIBRARY ACC. No------------------------------------MENGO YEAR. - ----------------------------------(CORAM: MANYINDO - DCJ., ODER, - JSC., PLATT - JSC) CIVIL APPLICATION NO. $42/92$

LIRRAZ-

BETWEEN

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LIBYAN ARAB (U) BANK FOR FOREIGN TRADE & DEVELOPMENT :: :: :: :: APPLICANT

A N D

ADAM VASSILIADIS :: :: :: :: :: :: :: RESPONDENT

RULING OF THE COURT:

The respondent, Adam Vassiliadis, sued the applicant one Haji Bagalaliwo in the High Court for specific perfor mance and damages in respect of the suit property situate on Plot No. 152 Rashid Khamis Road, Kampala. He lost the case but successfully appealed to this Court. The applicant has now brought this application, by Notice of Motion, for orders that:-

- $"i)$ an error arising from an accidental slip and or omission in the judgement<br>of the Court dated the 19th day of April 1991, be corrected; - ii) additional evidence be taken by this Court."

The grounds supporting the application were stated as $follows :=$

> $"1.$ The Court made a finding that the name on the Mailo Title (tendered in evidence)alone, 'without more,' was not sufficient proof, on the balance of probability, that the person named was an African.

ACC. No------------------------------------

In so finding, the Court erredrea. by omitting to direct its mind to the other evidence on record, showing<br>that the Plaintiff knew the land he wasdealing in was one in respect of which an African was a Registered Proprietor.

2. The Applicant herein has belatedly obtained evidence which is conclusive of the fact that the Mailo owner is/was an African."

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At the hearing of the Application Counsel for the respondent, Mr. Mulenga, made a preliminary objection to the application. It was that this Court has no jurisdiction to entertain the application which in essence would have this Court reverse its decision either by revaluating the evidence on record or after taking additional evidence.

In reply Mr. Owiny-Dollo, who represented the applicant, conceded the fact that this Court cannot over-rule its own decision in the same case but in another case. However, he contended that in this application the applicant was not asking the Court to reconsider its earlier decision in the case and then come to a different one. He went on:-

> "The reasoning of the Court (in the judgement) is sound but there was an omission - an accidental slip - in that the respondent had dealt with the applicant knowing that there was an African owning the land. This is what happened in Kawuma v. Lurum, Civil Appeal No.3 of 1992 (Supreme Court) unreported."

> > $...13$

ACC. No He also relied on Section $40(2)$ of the Judicature Act, as amended by Statute No. 12 of 1980. On the question of receiving additional evidence he submitted that this Court was entitled to receive it, a fact this Court had confirmed in the case of Sewanyana v. Aliker Civil Application No. 4 of 1990, (Unreported)

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SUPREME COURT LIBRARY

The Notice of Mortion was brought under Rules 1 (3), 35, 29(1), 42(1) and (2) of the Rules of this Court and section $40(2)$ of the Judicature Act. Mr. Dollo wanted to call evidence to show that the registered mailo land owner was an African. He thought he could do that under Rule $1(3)$ which re-affirms the inherent power of this Court to make orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. With respect, we do not consider that Rule $1(3)$ is concerned with the receipt of new or additional evidence. This Rule is meant to cure miscarriages of justice - due to fraud and nullity, for example. That is what we said inSewanyana, (supra).

The taking of additional evidence is governed by Rule $29(1)$ which states:-

- $"29. (1)$ On any appeal from a decision of a superior court acting in the exercise of its original jurisdiction the Court shall have power - - $(a)$ ........ - in its discretion, for sufficient $(b)$ reason, to take additional evidence or to direct that additional evidence be taken by the trial Court or by a Commissioner."

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SUPREME COURT LIBRARY ACC. No. $Y E A R$ ...

Clearly that Rule empowers this Court, in its discretion to take new evidence but only at the hearing of the appeal -the additional evidence must come in before the appeal is decided. It seems clear to us that in this application this Court is being asked to reopen the case, feview it and take on new evidence so that a different decision may be arrived at. This is not possible. A similar attempt was made/the lesing party in: $\sqrt{by}$ Lakhamshi Brothers Ltd v. Raja & Sons 1966 E. A.

313. The attempt failed; the Court of Appeal for East Africa held that it would not sit on appeal against its own judgement in the same proceedings.

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This Court has inherent jurisdiction to recall its judgement and perfect it to give effect to its manifest intention, under the slip rule, which is embodied in the provision of Rule 35(1) of this Court. It reads:-

> "35. $(1)$ A clerical or arithmetical mistake in any judgement of the Court or any error arising therein from an accidental slip or omission may at any time, whether before or after the judgement has been embodied in an order, be corrected by the Court, either of its own<br>motion or on the application of any interested parson so as to give effect to what was the intention of the Court when Judgementx was given.".

> > $...15$

The Limitation of that Rule is clear. It does allow this Court to sit inJudgement on its own previous decision. As was pointed out by the Court of Appeal for East Africa in Raniga v. Jivraj (1965) E. A. 700 at P. $703$ :

We would also like to observe that the records of YM: myindo DCJ; and Oder, JSC, bear out Mr. Nkurunziza's claim in his effidavit that at the hearing of the appeal the Court suggested to Mr. Mulenga, SC, that if - the appellant succeeded on the first ground of appeal, we would automatically remit the case to the High Court for assessment of damages.

ACC. No-

In the circumstances we would refuse this application and the remedies sought by it. The application is, therefore, dismissed with costs. However, the following orders are also hereby made:-

(a) The parties hereto should refer the matter to the Registrar of Titles together with any evidence that may assist the

Registrar in deciding whether Muscke was or was not an African.

(b) The Registrar of Titles should then refer the matter to the Minister for his decision.

(c) A copy of this Ruling and Orders should be forwarded to the Registrar of Titles and the Minister.

Platt, JSC, did not sign this Ruling although he was in the Coram that heard the application. This was because he had not been a member of the pannel that heard the appeal, which included Section, JSC, (now deceased).

... day of ........ DATED at Mengo This ...... 1993

> S. T. MANYINDO DEPUTY CHIEF JUSTICE

A. H. ODER JUSTICE OF THE SUFREME COURT

H. G. PLATT JUSTICE OF THE SUFREME COURT

I CERTIFY THAT THIS IS A TRUE COFY OF THE ORIGINAL.

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT.