Wakilii

Bazira & Anor Nakiwala (Review Cause No. 849 of 2012)

High Court · [2014] UGHCLD 102 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of judgment in Civil Suit No. 227 of 2009 under Section 82 and 98 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules
Decision
Review application dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that an application for review of a judgment must be supported by discovery of new and important evidence that was not reasonably available during trial, or by an error apparent on the face of the record. The mistake or omission of counsel to present evidence vital to a claim does not constitute grounds for review. An undated affidavit is not fatally defective under Article 126(e) of the Constitution. A review application based on discovery of new evidence may be heard by a judge other than the one who delivered the original judgment. Application dismissed for lack of merit.

Outcome

Review application dismissed

Facts

The 1st applicant claimed to have purchased land known as Bulemezi Block 35 Plot 30, Katikamu from the late Margret Julian Suubi in May 1987 and transferred it into his name before her death in April 1988. The land was later transferred to the 2nd applicant in 2012. The respondent, daughter of the late Margret Julian Suubi, was defendant in Civil Suit No. 227 of 2009 which resulted in a judgment the applicants now sought to review. The applicants brought a review application claiming they had discovered new evidence that the respondent had no letters of administration in her mother's estate and therefore no interest in the suit property. They also claimed their counsel negligently failed to adduce evidence of the 1st applicant's proprietorship. During hearing, applicants' counsel withdrew the second and third prayers relating to vacation of a caveat and setting aside orders in Revision Cause No. 12 of 2012. The respondent opposed the application, arguing inter alia that the matters raised were res judicata and that the 1st applicant lacked standing having transferred the land.

Issues

  1. Whether the applicants discovered new and important evidence previously overlooked by excusable misfortune warranting review of the judgment in Civil Suit No. 227 of 2009.
  2. Whether the mistake of counsel in failing to adduce evidence constitutes grounds for review under Order 46 rule 1 of the Civil Procedure Rules.
  3. Whether the 1st applicant has locus standi to bring the review application after transferring the suit land to the 2nd applicant.
  4. Whether an undated affidavit is fatally defective under Section 5 of the Commissioner of Oaths Act.
  5. Whether a review application can be heard by a judge other than the one who passed the original judgment.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.
  • Second and third prayers withdrawn by consent of applicants' counsel.

Rules and key headnotes

Civil Procedure — Review of Judgments — Grounds for Review — Discovery of New Evidence
To succeed in an application for review under Order 46 rule 1 of the Civil Procedure Rules, an applicant must show discovery of new and important matter or evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced at the time the decree was passed, or discovery of some error or mistake apparent on the face of the record, or any other sufficient reason analogous to the first two grounds.
Civil Procedure — Review of Judgments — Mistake of Counsel — Not a Ground for Review
The mistake or omission of counsel to take a necessary step or present certain evidence vital to the success of a claim does not constitute a 'mistake' envisaged under Order 46 rule 1 of the Civil Procedure Rules. The mistake or error contemplated by that rule must be one that is apparent on the face of the record, meaning an evident error so manifested and clear that no court would permit it to remain on the record.
Civil Procedure — Affidavits — Undated Affidavits — Effect of Defect in Jurat
An undated affidavit, while technically defective under Section 5 of the Commissioner of Oaths Act, does not vitiate the affidavit in view of Article 126(e) of the Constitution which stipulates that substantive justice can be administered without undue regard to technicalities. Errors or omissions regarding the date and the commissioner cannot vitiate an application.
Civil Procedure — Review of Judgments — Competence of Application — Failure to Attach Extracted Decree
An application for review of a judgment should be supported by an extracted decree from the judgment sought to be reviewed. Failure to attach an extracted decree renders the application incompetent, applying by analogy the principle established for appeals that the decree appealed from must be extracted and attached.
Civil Procedure — Review of Judgments — Hearing by Different Judge — Discovery of New Evidence
Where the main ground for review is discovery of new and important evidence, Order 46 rule 2 of the Civil Procedure Rules permits the application to be placed before a new judge rather than the judge who passed the original judgment.
Land & Property — Estate Administration — Beneficiary's Right to Sue Without Letters of Administration
A beneficiary of a deceased's estate can be sued to protect their interest in the estate even where no grant of letters of administration has been made. One does not need letters of administration to be a defendant in a matter involving matters of a deceased's estate.

Legislation cited (8)

Cases cited (9)

  • Re Nakivubo Chemists (U) Ltd [1979] HCB 12
  • Yusuf v Nokorach [1971] EA 104
  • Interconsumer Products Ltd v Nice and Soft Investments (2003) Ltd (Misc. Application No. 256 of 2004)
  • Tarlok Singh v Road Master Cycles (U) Ltd (Civil Appeal No. 46 of 2010)
  • Board of Governors & Headmaster Gulu S.S. v P. E. Odond (Civil Appeal No. 2 of 1990)
  • Yoweri Katorobo (Civil Appeal No. 2 of 1995)
  • Yefeesi Tegiike v Jamada Wakafutuli (HCMA No. 1 of 1996) [1996] V KALR 102
  • Israel Kabwa v Martin Banoba Musiga (Supreme Court Civil Appeal No. 52 of 1995)
  • Edison Kamyabwera v Pastor Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)

Full judgment

↓ Download PDF

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

Bazira & Anor Nakiwala (Review Cause No. 849 of 2012) [2014] UGHCLD 102 (30 April 2014)
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.