Wakilii

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

High Court · [2022] UGCOMMC 105 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of judgment delivered in originating summons proceedings concerning mortgagee's right to possession and sale
Decision
Application for review dismissed; original judgment of 6 September 2021 stands

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. The court held that it has jurisdiction to review a judgment on grounds of error apparent on the face of the record even where the original judge has retired. The applicant's liability as guarantor was properly before the court because she had annexed pleadings to her affidavit in reply that contained averments relating to the personal guarantee, thereby effectively pleading that capacity. Annexures to pleadings become part of the pleadings. The issue was litigated by both parties and addressed in submissions. The applicant's challenge amounted to an impermissible attempt to re-argue the merits rather than demonstrate a self-evident error, and review cannot be used as an appeal in disguise.

Outcome

Application for review dismissed; original judgment of 6 September 2021 stands

Facts

The applicant guaranteed a loan of UGX 280,000,000 advanced to M/s Mowi General Supplies Limited and secured it by mortgaging her property at Kyadondo Block 250 Plot 885, Bunga, Kampala. The loan was restructured in June 2016 with an additional UGX 340,000,000. When the borrower defaulted, the respondent bank issued a default notice in July 2017 and advertised the property for sale in December 2018. The applicant filed a civil suit challenging the sale. The respondent then filed originating summons seeking possession and sale of the mortgaged property. On 6 September 2021, Justice Wangutusi entered judgment for the respondent, ordering the applicant to hand over vacant possession. The applicant then filed this application seeking review of that judgment on grounds that the court erroneously based its decision on her personal guarantee, which she claimed was not pleaded and thus violated her right to be heard.

Issues

  1. Whether the court has jurisdiction to review a judgment delivered by a judge who has since retired.
  2. Whether there is an error apparent on the face of the record in the judgment of 6 September 2021.
  3. Whether the court erred in determining the applicant's liability as guarantor when that issue was allegedly not pleaded.
  4. Whether the applicant's right to be heard was violated by the court's consideration of her personal guarantee.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Review of Judgments — Jurisdiction — Review by Judge Other Than Original Judge
An application for review premised on discovery of new and important matter or evidence, or on the existence of clerical or arithmetical mistakes, 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.
Civil Procedure — Review of Judgments — Error Apparent on Face of Record — Definition and Scope
An error apparent on the face of the record is one which is self-evident and does not require an elaborate argument to be established. It is an error which strikes one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. A mere erroneous decision or wrong conclusion on appreciation of evidence is not an error apparent on the face of the record.
Civil Procedure — Review of Judgments — Distinction from Appeal — Impermissible Re-argument of Merits
An application for review has a limited purpose and cannot be allowed to be an appeal in disguise. Review may be granted to correct an apparent error or omission on the part of the court, but may not be exercised on the ground that the decision was erroneous on merits. The court exercising the power of review cannot sit in appeal over its own decision.
Civil Procedure — Pleadings — Annexures to Affidavits — Status as Part of Pleadings
All annexures attached to a pleading become part of the pleading. Where a party annexes pleadings containing averments relating to a particular issue to an affidavit in reply, that party thereby effectively pleads that issue as part of the defence.
Civil Procedure — Framing of Issues — Court's Power to Determine Issues Actually Litigated
Once an issue concerns the actual facts giving rise to the claim and was in fact actually litigated and was necessary to a final judgment on the merits, the court is entitled to make a finding on it whether or not the parties formally raised it as one of the issues for the court's determination. A judgment may be pronounced not only as to matters formally put in issue but also on matters offered and received to sustain or defeat the claim where necessary to the court's judgment.
Land & Property — Mortgages — Originating Summons Procedure — Appropriate Use
Originating summons is the appropriate procedure for mortgage enforcement proceedings where the main point at issue is one of construction of a document or statute or is one of pure law, and where no oral evidence is required and the proceedings can be determined by way of affidavit evidence. It is not appropriate where there is likely to be any substantial dispute of facts.

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.

Kwesiga v Commercial Bank of Africa (U) Limited (Miscellaneous Application 1197 of 2021) [2022] UGCommC 105 (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.