Court name
HC: Civil Division (Uganda)
Judgment date
23 August 2017

Wakera v Owor (HCT-04-CV-MA-2016/44) [2017] UGHCCD 125 (23 August 2017);

Cite this case
[2017] UGHCCD 125
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT – 04 – CV-MA-0044-2016

(ARISING FROM HCT-04-CV-CR-0014-2012

 

WAKERA VITALIS                                               ::::::::::::::                   APPLICANT

VERSUS

SULAIMAN OWOR                                                ::::::::::::::                   RESPONDENT

 

BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA

 

RULING

 

Applicant moved court by Notice of motion for orders that the exercise of planting boundary marks and report of the court emissary which re-established the boundary marks be reviewed by this honourable court and be set aside for mistake, error and illegality.

 

The grounds are listed in the Notice of Motion and affidavit in support filed and sworn by Wakera Vitalis.

 

The Respondent filed an affidavit in opposition, to which applicant filed a rejoinder.

 

Both parties filed written submissions in support of their respective cases.

 

The law that governs review is stated in O.46 r. 1 and 2 of the Civil Procedure Rules.

 

The general principle is that only the court that has passed a judgment can review it.

 

Any person aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred.... may apply to the court which passed the decree or order for a review of the judgment (See section 82 of the Civil Procedure Act and O.46 r. 1 and 2 of the Civil Procedure Rules).

 

Who is an aggrieved person?

Ladak Abdalla Mohamed Hussein v. Isingoma Kakiiza SCCA No. 8 of 1995, and Re Nakivubo Chemist (U) Ltd 1979 HCB 12, held that an aggrieved person is one who has suffered a legal wrong/grievance.

 

From the above definitions the applicant who was a party to the ruling in HC-04-14/2012 by virtue of which the Chief Magistrate at Tororo made orders to a court emissary to conduct a boundary demarcation exercise.

It is the conduct of the emissary which this applicant seeks to be reviewed.  The conduct of the emissary and the report he made, cannot be the subject of review by the Judge since they were not his orders.

 

A reading of the submissions by applicant seems to invite this court to review what was done by the court emissary, but in the process also denounce its ruling and findings under HCT.014/2012.

This flawed.

 

Review concerns itself with;

  1. Discovery of new and important matters.
  2. Error on the face of the record.
  3. Sufficient cause.

 

I have not found any error on the face of the record, or any discovery of new and important matters.  I have also not been swayed by applicant that any sufficient cause has been raised to warrant a review.

 

As was held in Busoga Growers Cooperative union Ltd v. Nsamba & sons Ltd HCMA 123/2000, review has to be grounded on discovery of new and important matter of evidence, or error apparent on the face of the record....”

I did not see any such apparent error on the record.

 

I do find that the arguments regarding the fact of whether the civil suits existed or not are not errors but questions of judgment for which the court already pronounced itself.  The case of National Bank of Kenya Ltd v. Njau (1995-1998) 2 EA 249, proposes that the error or omission must be self evidence and should not require an elaborate argument to be established.  It will not be sufficient ground for the review that another Judge could have taken a different view of the matter.  Nor can it be a ground for review that court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law misconstruing a statute or other provision of the law cannot be a ground of review.”

 

The above legal propositions show that review concerns itself with the “court order” or “judgment” not the process thereafter.

 

The applicant complains about the conduct of a court emissary whose actions were out of the control of this court.  The best action to correct his actions is not review but an administrative application to his supervisor (Chief Magistrate to have the process redone) if at all sufficient reasons do exist.

The applicant in his application has failed to raise sufficient grounds that warrant a review.

 

The application is found incompetent and is not proved.  It is accordingly dismissed with costs.  I so order.

 

 

Henry I. Kawesa

JUDGE

23.08.2017