Wakilii

Buwule v Mugyenyi (Civil Application 36 of 2019)

Supreme Court · [2020] UGSC 30 · 2020 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to recall and set aside a final judgment of the Supreme Court, by Notice of Motion under Rules 2(2), 35(1) & (2), 42 and 43 of the Judicature (Supreme Court Rules) Directions
Decision
Application to recall and set aside the judgment dismissed with costs; the Supreme Court's judgment in Civil Appeal No. 14 of 2016 stands

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Holding

The Supreme Court dismissed an application to recall and set aside its own final judgment. Following Orient Bank v Zaabwe, it held that its decisions are final and may be revisited only under Rule 2(2) (where a judgment is proved null and void for want of jurisdiction, breach of natural justice, or abuse of process) or Rule 35(1) (to correct an accidental slip giving effect to the court's intention). The applicant showed no denial of hearing, lack of jurisdiction, or accidental error; the deliberate departure from precedent was authorised by Article 132(4). The grounds attacked the merits, amounting to a disguised appeal impermissible against the apex court.

Facts

The applicant was the registered proprietor of mailo land at Kyadondo Block 237, Plot 368, Mutungo Luzira. He sued the respondent for trespass in the Chief Magistrate's Court, alleging the respondent settled on his land in 1998 without consent. The respondent claimed he bought a Kibanja on the land in 1996 from Freddie Kaggwa for UGX 2.5 million and was a bonafide occupant. The Magistrate dismissed the suit, finding the respondent a bonafide occupant. The High Court, sitting as first appellate court, dismissed the appeal on its merits, finding the applicant had not proved ownership and that the respondent was a bonafide occupant. The Court of Appeal reversed and ordered eviction. On further appeal, the Supreme Court (Civil Appeal No. 14 of 2016) allowed the appeal, set aside the Court of Appeal judgment and reinstated the High Court's decision. The applicant then brought this application to recall that judgment, alleging the Court applied the wrong law (the Land Act 1998 rather than the Land Reform Decree 1975) and contradicted its own findings on the applicable law and the certificate of title.

Issues

  1. Whether the affidavit in support of the application should be expunged in its entirety for being prolix and argumentative, or only as to its offending parts.
  2. Whether the Court should recall and set aside its own judgment under Rule 2(2), namely whether the judgment was proved null and void.
  3. Whether the Court should correct an accidental slip or omission under Rule 35(1) in relation to the letter requesting the record of proceedings, the applicable law, the departure from precedent, and the parties' pleadings.

Orders

  • The application is dismissed.
  • Costs of the application awarded to the respondent.

Key headnotes

Civil Procedure — Finality of Judgments — Recall and Setting Aside under Rule 2(2)
A decision of the Supreme Court on any issue of fact or law is final and may be recalled and set aside under Rule 2(2) only where the judgment is proved null and void, namely where it was pronounced without jurisdiction, in violation of the principles of natural justice, or obtained by abuse of the court's process.
Civil Procedure — Slip Rule — Correction of Accidental Errors under Rule 35(1)
The slip rule under Rule 35(1) permits correction only of clerical or arithmetical mistakes or errors arising from an accidental slip or omission, so as to give effect to the court's intention at the time judgment was given; it cannot be invoked to reopen or reconsider the merits of the decision.
Civil Procedure — Abuse of Process — Disguised Appeal against a Final Judgment
An application that in substance attacks the merits of a final judgment of the apex court, against which no appeal lies, amounts to a disguised appeal and an abuse of the court's process, contrary to the principle of finality of litigation.
Civil Procedure — Affidavits — Treatment of Prolix or Argumentative Affidavits
Where an affidavit contains prolix or argumentative matter, the court adopts a liberal approach consistent with Article 126(2)(e) of the Constitution and rejects only the offending parts, considering those parts that conform to the rules on affidavit evidence, rather than expunging the affidavit in its entirety.
Civil Procedure — Doctrine of Precedent — Departure from Previous Decisions under Article 132(4)
Under Article 132(4) of the Constitution the Supreme Court, while treating its previous decisions as normally binding, may depart from a previous decision when it appears right to do so; such a deliberate departure is a lawful exercise of judicial power and is not an accidental slip correctable under the slip rule.
Land & Property — Customary Tenure — Effect of Non-Compliance with Section 4 of the Land Reform Decree 1975
Non-compliance with the requirement in section 4 of the Land Reform Decree 1975 to give notice to the prescribed authority is a curable irregularity and does not render a transfer of customary tenure a nullity, the Decree having failed to identify who the prescribed authority is.

Legislation cited (15)

  • Judicature (Supreme Court Rules) Directions SI 13-11 r.2(2)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.35(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.42
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.43
  • Civil Procedure Act s.82
  • Civil Procedure Act s.79(1)(a)
  • Civil Procedure Rules SI 71-1 O.19 r.3
  • Civil Procedure Rules O.43 r.10
  • Land Reform Decree 1975 s.4(1)
  • Land Reform Decree 1975 s.4(2)
  • Constitution of Uganda Article 126(2)(e)
  • Constitution of Uganda Article 132(4)
  • Constitution of Uganda Article 21(1)
  • Constitution of Uganda Article 26
  • Registration of Titles Act s.59

Cases cited (15)

  • Besigye Kiiza v Museveni Yoweri Kaguta (Election Petition No. 1 of 2001)
  • Isaya Kalya v Moses Macekenyu Ikagobya (Civil Application No. 28 of 2005)
  • Incafex Ltd v Matthew Rukikaire (Civil Application No. 37 of 2017)
  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 4 of 1982)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Lawrence Kitto v Bugerere Co-operative Union (Civil Appeal No. 15 of 2004)
  • Kisekka Saku v Seventh Day Adventist Church (Civil Appeal No. 8 of 1993)
  • Paul Kisekka Ssaku v Seventh Day Adventists (Civil Appeal No. 3 of 1997)
  • Mohammed Mohammed Hamid v Roko Construction (Miscellaneous Application No. 18 of 2017)
  • Punjab Vs Davinder Singh Bhullar & others 2012 CR. LJ
  • Giridharilal & others Vs Pratap Rai Metita & anor
  • Orient Bank v Frederick Zaabwe (Civil Application No. 17 of 2007)
  • Lakhamshi Bros Ltd v R. Raja & Sons (1966) EA 313
  • R v Bow Street Metropolitan Stipendiary Magistrate (1991) 1 All ER 577
  • Tifu Lukwago v Samuel Mudde Kiiza (Civil Appeal No. 13 of 1996)
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