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Matovu Ssimbwa & Another v Kamya & Ors (Miscellaneous Application No. 463 of 2014)

High Court · [2019] UGHCFD 50 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of ruling in Miscellaneous Application No. 122 of 2018 arising from Civil Suit No. 26 of 2018
Decision
Ruling in Miscellaneous Application No. 122 of 2018 set aside; suit struck out in part for lack of instructions

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the application for review, finding errors apparent on the face of the record in the earlier ruling. The trial registrar failed to consider the respondents' affidavit in reply and submissions, contravening procedural fairness. Additionally, counsel proceeded without instructions from two parties, rendering the application incompetent as to them. The ruling in MA 122/2018 was set aside.

Outcome

Ruling in Miscellaneous Application No. 122 of 2018 set aside; suit struck out in part for lack of instructions

Facts

The applicants, administrators of the estate of late Prince Samson Ssimbwa, filed this application seeking review of a ruling in Miscellaneous Application No. 122 of 2018. That earlier application, brought by the respondents (who held competing letters of administration for the same estate), sought interim orders preventing the applicants from intermeddling with estate property. The applicants filed an affidavit in reply and written submissions opposing the application. The trial registrar granted the interim orders. The applicants contended the registrar failed to consider their defence. They also argued counsel acted without instructions from two of the parties in MA 122/2018. The respondents opposed the review application. The underlying dispute concerned competing claims to administer the estate and allegations of fraud in obtaining letters of administration, which were the subject of Civil Suit No. 26 of 2018.

Issues

  1. Whether there is an error of law on the face of the record in Miscellaneous Application No. 122 of 2018 to warrant its review.
  2. Whether the learned trial registrar erred by failing to consider the applicants' affidavit in reply and submissions in Miscellaneous Application No. 122 of 2018.
  3. Whether counsel acted without instructions from the 1st and 3rd applicants in Miscellaneous Application No. 122 of 2018.

Orders

  • The suit brought by the 1st and 3rd applicants in MA 122/2018 is struck out for lack of instructions.
  • The application for review is granted.
  • The ruling and orders in Miscellaneous Application No. 122 of 2018 are set aside.
  • Costs of the application awarded to the applicants.

Rules and key headnotes

Civil Procedure — Review of Judgments — Error Apparent on Face of Record — Failure to Consider Party's Evidence
A ruling that addresses only one party's case without any reference to or analysis of the opposing party's defence constitutes an error apparent on the face of the record justifying review, even where there is no requirement that every piece of evidence be mentioned, because balanced analysis ought to be seen on the face of the record and justice must not only be done but must also be seen to be done.
Civil Procedure — Review of Judgments — Grounds for Review — Definition of Error Apparent
An error apparent on the face of the record is one which is manifest or self-evident and does not require an examination or argument to establish it; it must be an evident error which does not require any extraneous matter to show its incorrectness, and must be so manifest and clear that no court would permit such an error to remain on the record.
Civil Procedure — Legal Representation — Acting Without Instructions — Effect on Competence of Application
An application filed by counsel without instructions from a party is rendered incompetent as to that party, but where counsel did have instructions from other co-applicants, the entire application need not be struck out; the suit is competent as to the instructing parties and should be struck out only as to those who gave no instructions, in accordance with constitutional requirements to avoid undue regard to technicalities.
Civil Procedure — Interlocutory Applications — Principles for Grant of Temporary Injunction
In applications for temporary injunctions, the court must consider whether the applicant has established a prima facie case, whether any injury is one that cannot be adequately compensated by way of damages, and the balance of convenience; it is not sufficient to claim that suit property is in danger without showing to court by documentary or other proof how that is so.

Legislation cited (9)

Cases cited (18)

  • Muyode v Industrial and Commercial Development and Ors (Court of Appeal Kenya EA 243 of 2006)
  • Kanyabwere v Tumwebaze (Supreme Court Appeal of 2005)
  • FX Mubwike v UEB (High Court Miscellaneous Application No. 98 of 2005)
  • Oburu & Anor v Equity Bank (U) Ltd (Miscellaneous Application No. 809 of 2015)
  • Batuk K. Vyas v Surat Municipality AIR (1953) Bom 133
  • Kalokola Kaloli v Nduga Robert (Miscellaneous Application No. 497 of 2014)
  • Edison Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Soroti Municipal Council v Pal Agencies (U) Ltd (Miscellaneous Application No. 181 of 2012)
  • Ziriyo Edison & Ors v Kampala Capital City Authority & Ors (Civil Suit No. 396 of 2012)
  • Hussein Badda v Iganga District Land Board & Ors (Miscellaneous Application No. 47 of 2011)
  • Nitco Ltd v Nyakairu {1992-1993} HCB 135
  • American Cyanamid Co. vs. Ethicon Ltd [1975] AC 396
  • E.L.T Kiyimba Kaggwa Versus Haji Abdu Nasser Katende [1985] HCB 43
  • Francis Babumba and 2 Others v Erisa Bunjo (High Court Civil Suit No. 697 of 1999)
  • Robert Kavuma v M/S Hotel International (Supreme Court Civil Appeal No. 8 of 1990)
  • Nasser Kiyingi and Another v Attorney General and 2 Others (Constitutional Application No. 29 of 2012)
  • Godfrey Sekitoleko and Others v Seezi Mutabazi (Court of Appeal Civil Appeal No. 65 of 2001)
  • Kabale Housing Tea Estates Tenants Association v Kabale Municipal Local Council (Supreme Court Civil Appeal No. 15 of 2013)

Full judgment

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Matovu Ssimbwa & Another v Kamya & Ors (Miscellaneous Application No. 463 of 2014) [2019] UGHCFD 50 (20 December 2019)
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.