Kassam and Others v Kassam and Another (Civil Application 24 of 2008)

Supreme Court · [2009] UGSC 41 · 2009 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to recall and correct a Supreme Court judgment under the slip rule and the court's inherent powers, arising from Supreme Court Civil Appeal No. 10 of 2006.

Decision

Application to recall and correct the judgment dismissed; the earlier judgment and its findings of fraud stand as the final determination.

The full judgment

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Holding

The Supreme Court dismissed an application to recall and alter its 2008 judgment so as to remove findings of fraud against the first applicant in respect of property transfers. The court held that the slip rule (Rule 35) and its inherent powers (Rule 2(2)) permit correction only of clerical errors, accidental slips, or omissions that give effect to the court's original intention, or matters available or implicit in the record that are necessarily consequential to the decision; they cannot be used as a disguised appeal to revisit findings of fact or law. Finding no error, slip, or omission, and that the fraud findings were deliberate conclusions on the record, the court held the application had no merit.

Facts

The parties are closely related Ugandans of Asian origin who lost properties in Uganda following the 1972 expulsion, including Plot 3 De Winton Road and Plot 51 Kampala Road. Under powers of attorney dated 1990, the first applicant was appointed attorney to repossess and manage the properties. A dispute arose over accounting for funds, and the powers of attorney were revoked in 1994. After the respondents sued for recovery and an account, and while that suit was pending, the first applicant caused 50% of Plot 3 and 25% of Plot 51 to be transferred into her father's name. The respondents amended their plaint to allege the transfer was fraudulent. The trial court found the transfer not fraudulent, but the Court of Appeal and subsequently the Supreme Court found the transfer fraudulent, the first applicant having acted while aware the powers had been revoked and while the property was the subject of a live suit. The applicants then sought to have the fraud findings altered.

Issues

Whether the court could, under the slip rule (Rule 35) or its inherent powers (Rule 2(2)), recall and alter its earlier judgment so as to correct or remove findings of fraud against the first applicant.
Whether the earlier judgment contained any clerical error, accidental slip, or omission, or wrong finding of fact or law, capable of correction under those rules.

Orders

The application is dismissed.
No order as to costs.

Key headnotes

Civil Procedure — Correction of Judgments — Slip Rule — Conditions for a Slip Order

A slip order under Rule 35 will be made only where the court is fully satisfied that it is giving effect to the intention of the court at the time judgment was given, or, where a matter was overlooked, where it is satisfied beyond reasonable doubt as to the order it would have made had the matter been brought to its attention.

Civil Procedure — Correction of Judgments — Scope of "Matter Overlooked"

A matter said to have been overlooked must be one the court could lawfully have looked at or acted upon when deciding the appeal — available or implicit in the record, or necessarily and clearly consequential to the court's decision; it cannot be a matter not in evidence or one that does not follow from the findings on appeal.

Civil Procedure — Correction of Judgments — Slip Rule Not a Disguised Appeal

The slip rule and the court's inherent powers cannot be invoked to reopen and alter deliberate findings of fact or law; where there is no clerical error, accidental slip, or omission, the court will not disturb its considered conclusions, and an application to do so amounts to a disguised appeal.

Legislation cited (9)

Constitution of Uganda Article 126(2)(e)
Constitution of Uganda Article 131(1)
Constitution of Uganda Article 14(1)
Judicature Act s.7
Judicature Act s.39
Rules of the Supreme Court r.2(2)
Rules of the Supreme Court r.35
Rules of the Supreme Court r.42
Expropriated Properties Act 1982

Cases cited (3)

Non-Performing Assets Recovery Trust v General Parts (U) Ltd (Supreme Court Civil Application No. 8 of 2000)
Raniga v Jivraj (1965) EA 700
Zaituna Kawuma v George Mwa Luyum (Supreme Court Civil Application No. 3 of 1992)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.