Wakilii

Amoko v Wasige & 6 Others (Miscellaneous Application 463 of 2023)

High Court · [2023] UGCOMMC 216 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of an order made in Civil Appeal No. 0042 of 2022 directing sale of immovable property in execution of a consent judgment
Decision
Order directing sale of property set aside; applicant at liberty to pursue alternative modes of execution

Observed later treatment

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Holding

The court granted the application for review and set aside the order directing sale of Kyadondo Block 185 Plot 13869 in execution of the judgment debt. The applicant established that newly discovered evidence—a valuation and survey report revealing that the property was significantly smaller than represented, partly waterlogged, traversed by access roads, and affected by third party claims—was not within her knowledge at the time of the appeal and could not have been obtained with due diligence before the order was made. The evidence was relevant and of such character that it might have altered the decision, as it demonstrated the property was unsellable by public auction.

Outcome

Order directing sale of property set aside; applicant at liberty to pursue alternative modes of execution

Facts

The applicant paid US$83,963 and UGX 46,307,500 to the 7th respondent toward purchase of housing units in a planned estate. When the project failed, she obtained a consent judgment for recovery of the sum. She later discovered the land belonged to a different entity and sought to lift the corporate veil, which was granted. The Deputy Registrar issued warrants of arrest against the 1st to 6th respondents. On appeal, the court set aside the warrants and ordered sale of property comprised in Kyadondo Block 185 Plot 13869 to satisfy the debt. The respondents had offered the title deed to this property as security in February 2022. After the appeal decision, a valuation and survey revealed the property was significantly smaller than the title indicated, partly waterlogged requiring NEMA approval, traversed by access roads, and affected by third party claims, rendering it unsellable by public auction.

Issues

  1. Whether the applicant discovered new and important matter of evidence that was not within her knowledge or could not be produced at the time of the appeal hearing.
  2. Whether the newly discovered evidence is relevant and of such character that it might have altered the order made in Civil Appeal No. 0042 of 2022.
  3. Whether the applicant exercised due diligence in attempting to discover the evidence before the appeal was heard.
  4. Whether the order directing sale of Kyadondo Block 185 Plot 13869 should be set aside or varied on review.

Orders

  • The order directing recovery of the judgment debt by sale of Kyadondo Block 185 Plot 13869 made on 14th November 2022 in Appeal No. 0042 of 2022 is set aside.
  • The applicant is at liberty to seek recovery of the judgment debt by any of the modes specified by the Civil Procedure Act and the Civil Procedure Rules.
  • Recovery by way of arrest and imprisonment of the respondents is to be adopted as a measure of last resort in the absence of any other practical alternative.
  • Costs of this application awarded to the applicant.

Rules and key headnotes

Civil Procedure — Review — Discovery of New Matter of Evidence — Requirements
Where a review is sought on the ground of discovery of new matter of evidence, such matter of evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. It must have emerged after passing of the judgment, and was not within the knowledge of the party seeking review or could not be produced before the passing of the judgment, despite the party having undertaken an exercise of due diligence.
Civil Procedure — Review — Scope and Limitations — Not an Appeal in Disguise
An application for review has a limited purpose and cannot be allowed to be an appeal in disguise. A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court, but it may not be exercised on the ground that the decision was erroneous on merits. Re-evaluation of new points of arguments or questions of law is excluded from the scrutiny of the court in valid exercise of review jurisdiction.
Civil Procedure — Review — Due Diligence — Standard of Assessment
Evidence that would reasonably be in the knowledge of and, with due diligence, available to an applicant will not qualify as newly discovered evidence for purposes of review. Due diligence is assessed based on such personal knowledge as can be gained through first hand observation or experience, in circumstances where, by the standard of a reasonable person, there is a duty of finding out. The law will not permit an applicant to remain wilfully ignorant of an item or information readily ascertainable when the means of knowledge is at hand.
Civil Procedure — Review — Variation as Alternative to Setting Aside
Section 82 of the Civil Procedure Act confers an unfettered discretion in the court to make such orders as it thinks fit on review. The court has inherent jurisdiction to vary, modify or extend its own orders if, in its view, the purposes of justice require that it should do so, instead of setting aside the order. However, this is a jurisdiction that has to be exercised cautiously and only where it will serve to promote public interest and enhance public confidence in the rule of law.
Civil Procedure — Execution — Mode of Execution — Arrest and Imprisonment as Last Resort
In line with current practice, recovery of a judgment debt by way of arrest and imprisonment of judgment debtors is to be adopted as a measure of last resort in the absence of any other practical alternative.

Legislation cited (3)

Cases cited (4)

  • Kasule Sowedi v Kasujja Henry [1979] HCB 99
  • Ndawula J v GB Mubiru and Departed Asians Custodian Board [1976] HCB 106
  • Sarder Mohamed v Charan Singh Nand Sing and another [1959] EA 793
  • Geoffrey Opio v Felix Obote and two others (Miscellaneous Civil Application No. 81 of 2018)

Full judgment

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

Amoko v Wasige & 6 Others (Miscellaneous Application 463 of 2023) [2023] UGCommC 216 (3 May 2023)
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.