Wakilii

Acayo Satina Franca vs Obita Nickson (Miscellaneous Application No. 7 of 2020)

High Court · [2022] UGHC 19 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of costs order arising from Civil Appeal No. 009 of 2016
Decision
Costs order reviewed and set aside; each party to bear own costs; retrial order unaffected

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that where an appeal is disposed of on grounds of illegality in the lower court's judgment (unsigned and undated judgment) without hearing the merits, and the fault lies with the court rather than the parties, awarding costs to one party constitutes an error apparent on the face of the record. The court reviewed and set aside the costs order, directing that each party bear its own costs of the appeal.

Outcome

Costs order reviewed and set aside; each party to bear own costs; retrial order unaffected

Facts

Acayo Santina Franca successfully sued Obita Nickson in the Magistrate's Court for declaration of ownership of land and obtained judgment with damages and costs. Obita Nickson appealed to the High Court. Justice Vincent Tonny Okwanga, upon his own due diligence, discovered that the trial court judgment was unsigned and undated by the magistrate who wrote it, and was delivered by a successor magistrate after the original magistrate had retired. The High Court declared the judgment a nullity, set it aside, ordered a retrial, and awarded costs of the appeal to Obita Nickson. Acayo Santina Franca then applied for review of the costs order, arguing that she should not bear costs where the illegality was the court's fault, not hers.

Issues

  1. Whether the application for review was properly brought before Justice George Okello rather than the judge who made the original order.
  2. Whether there was an error apparent on the face of the record in awarding costs to the respondent when the appeal was not decided on merit but was set aside for illegality.
  3. Whether the costs order should be reviewed and set aside in the interest of justice.

Orders

  • Application for review allowed.
  • The order awarding costs to the respondent in Civil Appeal No. 009 of 2016 is reviewed and set aside.
  • Each party to bear its own costs of Civil Appeal No. 009 of 2016.
  • Each party to bear its own costs of this review application.
  • The order for retrial of Civil Suit No. 11 of 2013 remains unaffected.

Rules and key headnotes

Review — Jurisdiction — Which Judge May Hear Review Application
Where a review application is based on error apparent on the face of the record, discovery of new and important evidence, or clerical or arithmetical mistake, it may be heard by any judge other than the judge who made the original order, and need not be brought before the original judge.
Review — Error Apparent on Face of Record — Definition and Scope
An error apparent on the face of the record must be obvious and self-evident, requiring no elaborate argument or long-drawn reasoning to establish. It is an error of inadvertence that stares one in the face. Where a court applies its mind to facts or law and reaches a conclusion after conscious reasoning, even if wrong, that is not an error apparent on the face of the record but an erroneous decision correctable only by appeal.
Costs — Award of Costs Where Appeal Not Heard on Merit — Court Error
Where an appeal is disposed of on grounds of illegality in the lower court's proceedings without the appeal being heard on merit, and the illegality is attributable to the court rather than the parties, awarding costs to one party constitutes an error apparent on the face of the record. In such circumstances, the proper order is that each party bear its own costs.
Costs — Principle Where Fault Lies With Court
Where the fault in proceedings lies squarely with the court, no party should be penalized in costs. The correct approach is that each party bears its own costs. This principle applies whether the error is in the trial court or appellate court.

Legislation cited (8)

Cases cited (6)

  • Outa Levi v Uganda Transport Corporation Ltd [1975] HCB 353
  • Nyamogo & Nyamogo Advocates v Kago [2001] 2 EA 173
  • Lalwak Alex v Opio Mark (Miscellaneous Civil Application No. 58 of 2016)
  • Mohamed Alibhai v W.E Bukenya Mukasa and Departed Asian Property Custodian Board (Civil Appeal No. 56 of 1996)
  • Mohammed Mohammed v Roko Construction Ltd (Civil Appeal No. 1 of 2013)
  • Komakech Geoffrey & M/s Victoria Advocates v Rose Akol Okullo, Electoral Commission and Among Annet Anita (Civil Appeal No. 21 of 2021)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Acayo Satina Franca vs Obita Nickson (Miscellaneous Application No. 7 of 2020) [2022] UGHC 19 (24 October 2022)
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.