Wakilii

Birungi and 3 Others v Kusemererwa and 2 Others (Revision Application No. 1 of 2021)

High Court · [2022] UGHCCD 135 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revision application arising from Civil Appeal No. 74 of 2014 and Civil Suit No. 73 of 2008
Decision
Revision application dismissed; applicants remain bound by the earlier judgment in Civil Appeal No. 74 of 2014.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a party cannot opt for appeal and then later apply for review of the same decision. Review under section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules is not available where an appeal has been preferred. An applicant who had evidence available at trial but failed to adduce it cannot obtain a retrial by seeking review; the proper course was to apply to adduce fresh evidence on appeal. The application was dismissed with no order as to costs given the familial relationship between the parties.

Outcome

Revision application dismissed; applicants remain bound by the earlier judgment in Civil Appeal No. 74 of 2014.

Facts

The applicants sought review of the judgment and orders in Civil Appeal No. 74 of 2014 arising from Civil Suit No. 73 of 2008, both concerning a land dispute. The applicants claimed that material evidence — specifically a certificate of title registered in January 2009 after the suit was filed, and a will — had not been adduced at trial due to their former counsel's omission. They argued this constituted a material irregularity warranting retrial. The third respondent opposed the application, stating that the certificate was registered after the suit was filed and could not be introduced at this stage, and that the applicants were attempting to introduce evidence not previously pleaded or exhibited. Civil Suit No. 73 of 2008 was originally filed in the Chief Magistrate's Court at Hoima; the applicants lost at trial and on appeal.

Issues

  1. Whether the court should review and set aside the judgment and orders in Civil Appeal No. 74 of 2014 and Civil Suit No. 73 of 2008 and order a fresh trial.
  2. Whether a party who has appealed a decision can subsequently apply for review of the same decision.
  3. Whether the applicants' failure to adduce certain evidence (certificate of title and will) at trial constitutes a sufficient ground for review.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Review — Availability of Review After Appeal
A party who has appealed a decision cannot subsequently apply for review of the same decision. Review under section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules is not permissible where an appeal has been preferred. A party cannot opt for both appeal and review.
Evidence — Fresh Evidence — Proper Procedure on Appeal
Where a party seeks to introduce evidence not adduced at trial, the proper course is to apply to the appellate court to admit fresh evidence during the appeal under established principles. An applicant cannot bypass this procedure by seeking review and retrial after losing the appeal.
Evidence — Duty to Adduce Evidence at Trial — Effect of Failure
It is an invariable rule that if evidence was in the possession of a party at the time of trial or could have been obtained by proper diligence, and was not produced, no opportunity for producing that evidence ought to be given by granting a new trial. In the interest of finality of litigation, a party cannot re-run a trial simply because relevant evidence was not put before the court.
Civil Procedure — Pleadings — Binding Nature
Parties are bound by their pleadings. A counsel cannot lead evidence on matters not pleaded. Where a party's pleadings did not assert registered proprietorship but only an ongoing process of obtaining a certificate of title, counsel could not later adduce the certificate as evidence at trial without amending the pleadings.
Civil Procedure — Finality of Litigation
In the interest of society as a whole, litigation must come to an end. When a litigant has obtained judgment in a court of justice, he is by law entitled not to be deprived of that judgment without very solid grounds.

Legislation cited (2)

Cases cited (5)

  • Ahmada B. Zirondomu v Mary Kyamutabi (1975) 1 HCB 337
  • National Insurance Corporation v Mugenyi & Co. Advocates (1987) HCB 28
  • Uganda Taxi Operation & Drivers Association v Uganda Revenue Authority (SCCA No. 24 of 2019)
  • Brown v Dean [1910] AC 373
  • Hon. Bangirana Kawoya v National Council for Higher Education (Misc. Application No. 8 of 2013)

Full judgment

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

Birungi and 3 Others v Kusemererwa and 2 Others (Revision Application No. 1 of 2021) [2022] UGHCCD 135 (31 August 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.