Wakilii

Kweisga v Commercial Bank of Africa (U) Limited (Miscellaneous Application 1197 of 2021)

High Court · [2022] UGCOMMC 114 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of High Court Commercial Division judgment in originating summons proceedings relating to mortgage enforcement
Decision
Application for review of the judgment of 6 September 2021 dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for review. An application for review based on error apparent on the face of the record may be heard by a judge other than the one who delivered the original judgment. An error apparent on the face of the record is one that is self-evident and does not require elaborate reasoning to establish. The applicant's liability as guarantor was properly before the court because she pleaded it by annexing pleadings containing averments on the personal guarantee to her affidavit, as annexures to pleadings become part of the pleadings. The court may frame issues from allegations made in pleadings and their annexures. The application was an impermissible attempt to re-argue the merits of the original decision under the guise of review.

Outcome

Application for review of the judgment of 6 September 2021 dismissed with costs to the respondent

Facts

The applicant guaranteed a loan of UGX 280,000,000 advanced by the respondent bank to Mowi General Supplies Limited in 2014, secured by a mortgage over her land. The loan was restructured in 2016 with an additional advance of UGX 340,000,000 secured by a further charge. When the borrower defaulted, the respondent issued a default notice demanding UGX 305,295,091 and advertised the land for sale. The sale was rescinded due to the applicant's refusal to vacate. The respondent filed originating summons seeking possession and leave to sell the mortgaged property. On 6 September 2021, Justice David Wangutusi entered judgment for the respondent, ordering the applicant to hand over vacant possession to facilitate sale by mortgagee. The applicant then filed this application seeking review of that judgment on grounds of error apparent on the face of the record, contending her liability as guarantor was not pleaded and the court decided the matter on a ground not placed before it.

Issues

  1. Whether the High Court judgment of 6 September 2021 contained an error apparent on the face of the record justifying review.
  2. Whether the trial court erred in determining the applicant's liability as guarantor when that issue was allegedly not pleaded.
  3. Whether a judge other than the one who delivered the original judgment has jurisdiction to review it on the ground of error apparent on the face of the record.
  4. Whether annexures to pleadings form part of the pleadings for purposes of determining issues before the court.

Orders

  • Application for review dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Review of Judgments — Jurisdiction — Review by Judge Other Than One Who Delivered Original Judgment
An application for review premised on discovery of new and important matter or evidence, clerical or arithmetical mistake, or error apparent on the face of the decree or order may be considered by any judge other than the one who passed the decree or order sought to be reviewed, pursuant to Order 46 rule 2 of the Civil Procedure Rules.
Civil Procedure — Review of Judgments — Error Apparent on Face of Record — Meaning and Scope
An error apparent on the face of the record is one which is self-evident and does not require an elaborate argument or a long drawn process of reasoning to be established. It is an error which strikes one on mere looking at the record. A mere erroneous decision or wrong conclusion on appreciation of evidence does not constitute an error apparent on the face of the record. Review is not an appeal in disguise and cannot be used to reappraise evidence or re-argue the merits of a decision.
Civil Procedure — Pleadings — Annexures to Affidavits — Effect on Scope of Issues
All annexures attached to a pleading become part of the pleading. Where a party annexes pleadings containing specific averments to her affidavit, those averments are thereby effectively pleaded and form part of the case before the court.
Civil Procedure — Framing of Issues — Court's Power to Frame Issues Not Expressly Raised by Parties
Under Order 15 rule 3 of the Civil Procedure Rules, the court may frame issues from allegations made on oath by the parties, allegations in pleadings, and contents of documents produced by either party. Where both parties had a full and fair opportunity to litigate an issue, and the issue was actually litigated and necessary to the final judgment, the court is entitled to make a finding on it whether or not the parties formally raised it as an issue for determination.

Legislation cited (8)

Cases cited (4)

  • Outa Levi v Uganda Transport Corporation [1975] HCB 353
  • Nyamogo & Nyamogo Advocates v Kago [2001] 2 EA 173
  • Sayyad Tahir Hussain Mainuddin v. The State of Maharashtra, 2007 (109) Bom L R 1906
  • Jeraj Shariff & Co v Chotai Fancy Stores [1960] 1 EA 374

Full judgment

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

Kweisga v Commercial Bank of Africa (U) Limited (Miscellaneous Application 1197 of 2021) [2022] UGCommC 114 (31 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.