Wakilii

Bananura Kaliisa and Another v ABSA Bank (U) Limited and 3 Others (Miscellaneous Application No. 1874 of 2020)

High Court · [2022] UGHCLD 9 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of dismissal order arising from Civil Suit No. 648 of 2006
Decision
Application for review dismissed; underlying suit remains dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for review. Counsel's failure to comply with court directives does not constitute an error apparent on the face of the record meriting review. A suit dismissed for delayed prosecution cannot be reinstated by the same court; the proper remedy is appeal. The underlying suit had been terminated by consent judgment in 2010, rendering the court functus officio. The application was vexatious, frivolous, and an abuse of court process.

Outcome

Application for review dismissed; underlying suit remains dismissed

Facts

The applicants, two wives of the 3rd respondent, filed Civil Suit No. 648 of 2006 challenging the sale of their matrimonial home mortgaged to the 1st respondent bank without their consent. The suit was dismissed on 28 July 2020 under Order 17 rule 4 CPR for failure to file witness statements and prosecute the case after 14 years. The applicants filed this application on 11 December 2020 seeking review on grounds of error apparent on the face of the record, alleging their former counsel failed to inform them of court dates, comply with court directives, and act on their instructions. The court found that a consent judgment had terminated the underlying suit on 9 July 2010, before the dismissal order was made.

Issues

  1. Whether the application merits a review.
  2. Whether counsel's failure to comply with court directives constitutes an error apparent on the face of the record.
  3. Whether a suit dismissed for delayed prosecution can be reinstated by the same court.
  4. Whether the court was functus officio having previously endorsed a consent judgment terminating the underlying suit.

Orders

  • Application dismissed.
  • Costs awarded to the 4th respondent, payable by the applicants' counsel.

Rules and key headnotes

Civil Procedure — Review of Judgment — Error Apparent on Face of Record — Distinction from Erroneous Decision
An error apparent on the face of the record is a manifest error that does not require extraneous evidence to prove. There is a clear distinction between an erroneous decision and an error apparent on the face of record: the first can be corrected by a higher forum through appeal; the latter can only be corrected by exercise of review jurisdiction. Only a manifest error would be a ground for review.
Civil Procedure — Review of Judgment — Counsel's Negligence — Not Error Apparent on Face of Record
A mistake or error by counsel, including failure to comply with court directives or inform clients of court dates, cannot be visited on the litigant but does not fall within the category of an error on the face of record as to merit a review. It cannot on its own constitute sufficient cause for review.
Civil Procedure — Dismissal for Delayed Prosecution — Reinstatement Not Available
Suits dismissed for delayed prosecution in the spirit of section 17 of the Judicature Act cannot be reinstated by the same court that dismissed them. The plaintiff's only remedy is to appeal against such order as it constitutes a final decree.
Civil Procedure — Functus Officio — Effect of Consent Judgment
Where a suit has been terminated by consent judgment endorsed by the court, the court becomes functus officio and cannot subsequently hear, determine, and issue orders in the same suit. A suit that has been withdrawn by consent cannot be resurrected and reheard by the same court that endorsed the consent.
Civil Procedure — Review — Not Alternative to Appeal
The court's power of review should not be used as an alternative or backdoor to an appeal. An order cannot be reviewed because it is shown that the judge decided the matter on a foundation of incorrect procedure, that the decision revealed a misapprehension of the law, or that the judge exercised discretion wrongly.

Legislation cited (6)

Cases cited (7)

  • Re-Nakivubo Chemist (U) Ltd (1979) HCB 12
  • National Bank of Kenya v Ndungu Niau [1966] LLR 469 (CAK)
  • Kampala International University Ltd v Tororo Cement Ltd and 2 Others (HCCA No. 0433 of 2006)
  • Isadru Vicky v Perima Aroma and 6 Others (Arua HCCA No. 0033 of 2014)
  • Kibugumu Patrick v Aisha Mulungi and Another (HCMA No. 445 of 2014)
  • Lukwago Erias v Jennifer Musisi (HCT MA No. 626 of 2018)
  • Ntambala Faustine Kitimbo v Attorney General and Others (HCT MA No. 898 of 2019)

Full judgment

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

Bananura_Kaliisa_and_Another_v_ABSA_Bank_(U)_Limited_and_3_Others_(Miscellaneous_Application_No._1874_of_2020)_[2022]_UGHCLD_9_(28_January_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.