THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ, TSEKOOKO, OKELLO,
KITUMBA AND KISAAKYE, JJSC.)
CIVIL APPLICATION NO.06 OF 2009
B E T W E EN
FANG MIN: :::::::: APPLICANT
A N D
DR. KAIJUKA MUTABAAZI
EMMANUEL: ::::::: RESPONDENT
[Application arising from the judgment and orders of the Supreme Court at Mengo (Odoki, CJ, Tsekooko, Mulenga, Kanyeihamba and Okello JJSC), dated 20th January 2009, in Civil Appeal No. 23 of 2007].
RULING OF THE COURT:
This is an application under rules 2(2), 35 & 42 of the Rules of the Supreme Court. In the application, the applicant seeks that this court recalls its judgment to be corrected under the slip rule “so as to remove the order for payment of the market value of the suit house in lieu of specific performance.”
The background to the application is briefly that on or about the 10th day of August 2001, the applicant and the respondent executed a written agreement of sale of property comprised in Freehold Register Volume 344 Folio 10 Plot No. 13, Malcolm-X Avenue, Kololo in Kampala. Subsequently, a dispute arose between the parties arising from the agreement and the applicant terminated the contract. She secretly paid into the respondent’s bank account the part purchase price made by the respondent.
The respondent countered by filing a suit in the High Court in Kampala against the applicant for breach of contract. The High Court heard the case and gave judgment in favour of the respondent and ordered for specific performance of the contract. The High Court also made some alternative orders.
The applicant successfully appealed to the Court of Appeal against that decision of the High Court. Dissatisfied with the decision of the Court of Appeal, the respondent appealed to this court. In its judgment stated above, this court reversed the decision of the Court of Appeal and “restored the judgment and substantial orders of the High Court.” This court also made an alternative order that “if the specific performance cannot be performed then the respondent is to pay to the appellant, by way of damages, the market value of the suit house.” It is against this highlighted alternative order that this application is made.
The application is based on the grounds that there is discord between the orders made by the Supreme Court and those made by the High Court so far as regards payment in lieu of specific performance thus occasioning uncertainty as to which order to comply with in effecting payment in lieu of specific performance and that in the interest of justice the application ought to be allowed.
The application is supported by an affidavit of Mike Okua sworn on 27th May, 2009.
At the hearing, the applicant was represented by Messrs. William Byaruhanga and Andrew Kasirye of Kasirye, Byaruhanga & Co. Advocates. The respondent on the other hand was represented by Messrs. B. Tumusinguzi and Muhimbura.
Presenting the applicant’s case, Mr. Byaruhanga submitted that this application is brought under the slip rule (rule 35 (1) of the Rules of this Court) seeking that this court’s judgment dated 20th January 2009, in Civil Appeal No. 23 of 2007, be recalled and corrected. He pointed out that the intention of this court at the time of the judgment was to restore the judgment and orders of the High Court. He argued that that being so, the alternative order made by this court that “if the specific performance cannot be performed, then the respondent (now applicant) is to pay the appellant (respondent), by way of damages, the market value of the suit house” was a slip. He reasoned that that order created conflict with the alternative orders of the High Court which included an order for damages in the sum of shillings twenty million. He concluded that to give effect to the intention of the court at the time of the judgment, it was necessary to remove that slip order and stop at restoring the judgment and orders of the High Court. He prayed that the application be allowed.
Mr. Tumusinguzi opposed the application essentially on two grounds and relied on an affidavit in reply of Omony Stanley sworn on 28-04-2010.
The first ground of objection to this application was that the application is premature. Learned counsel contended that the application would have been necessary if it was shown that the specific performance could not be performed. He pointed out that paragraph 6 of