Wakilii

Mushabe v Mutumba & Another (MISCELLANEOUS APPLICATION NO. 8 OF 2020)

High Court · [2020] UGHCCD 123 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to review and set aside judicial review ruling arising from Miscellaneous Cause No. 145 of 2019
Decision
Orders in Miscellaneous Cause No. 145 of 2019 set aside; applicant's certificate of title not cancelled

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a judicial review application seeks cancellation of a certificate of title, the registered proprietor is a person directly affected and must be served with notice and given the right to be heard. Failure to do so constitutes an error apparent on the face of the record and violates principles of natural justice. The court exercised its power of review to set aside the earlier order that had directed cancellation of the applicant's certificate of title without affording him an opportunity to be heard.

Outcome

Orders in Miscellaneous Cause No. 145 of 2019 set aside; applicant's certificate of title not cancelled

Facts

The applicant, Mushabe Apollo, held a certificate of title for land registered as Gomba Block 47 Plot 2. On 20th December 2019, the High Court granted a judicial review application in Miscellaneous Cause No. 145 of 2019 brought by Mutumba Ismael, ordering cancellation of the applicant's certificate and reinstatement of Mutumba Ismael's title. The applicant was not named as a party to the judicial review proceedings and was not served with notice, despite his name featuring prominently in the pleadings and his interests being directly affected. On 7th January 2020, the applicant learned of the order when the Commissioner Land Registration wrote to him requesting surrender of his certificate for cancellation. The applicant then brought this application to review and set aside the December 2019 ruling on grounds that the failure to serve him and afford him a hearing constituted an error apparent on the face of the record and violated principles of natural justice.

Issues

  1. Whether this is a proper case to review the judgment arising from Miscellaneous Cause No. 145 of 2019.
  2. Whether failure to serve an interested party with notice of judicial review proceedings constitutes an error apparent on the face of the record.
  3. Whether an order for cancellation of a certificate of title granted without hearing the title holder violates the right to be heard and principles of natural justice.

Orders

  • Application for review allowed.
  • The ruling and orders in Miscellaneous Cause No. 145 of 2019 dated 20th December 2019 are reviewed and set aside.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Review of Judgments — Error Apparent on Face of Record — Failure to Serve Interested Party
Where a judicial review application seeks cancellation of a certificate of title, the registered proprietor is a person directly affected within the meaning of Rule 6(2) of the Judicature (Judicial Review) Rules, 2009, and must be served with notice of the application and given an opportunity to be heard. Failure to serve such a person constitutes an error apparent on the face of the record justifying review of the judgment.
Judicial Review — Service of Notice — Persons Directly Affected — Natural Justice
The requirement in Rule 6(2) of the Judicature (Judicial Review) Rules, 2009 that notice of motion must be served on all persons directly affected is mandatory where the relief sought will directly affect a person's legal and beneficial interests. A person is directly affected where the record shows their interests will be prejudiced by the orders sought, even if they were not party to the administrative decision under review.
Administrative Law — Natural Justice — Right to be Heard — Audi Alteram Partem
The right to be heard before a decision affecting one's rights is made is a fundamental principle of natural justice constitutionally protected under Article 28(1) of the Constitution. Courts in judicial review proceedings must apply rules of fairness and not condemn a person unheard, particularly where the relief sought includes cancellation of their registered title.
Civil Procedure — Review of Judgments — Third Party Applications — Inherent Powers
A third party not named as a party to proceedings may apply under the inherent powers of the court to have a judgment reviewed where that judgment affects their interests, provided they establish grounds for review under Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules.
Civil Procedure — Review of Judgments — Scope of Review Power — Error Apparent on Face of Record
An error apparent on the face of the record is an evident error which does not require extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit it to remain on the record. The power of review may not be exercised on the ground that the decision was erroneous on merits; that would be the province of a court of appeal.
Civil Procedure — Review of Judgments — Test for Review — Question of Law versus Question of Fact
The question whether a review should be accepted or rejected must be decided with reference to the grounds on which review is permissible, and not on the merits of the claim. The effect of a review is to vacate the decree passed. The decree subsequently passed on review, whether it modifies, revises, reverses or confirms the decree originally passed, is a new decree superseding the original decree.

Legislation cited (13)

Cases cited (8)

  • Ladak Abdulla Mohammed v Griffins Isingoma Kakiiza & 2 Others (Civil Appeal No. 8 of 1995)
  • Al-Shafi Investment Group LLC v Ahmed Darwish Dagher & Another (Miscellaneous Application No. 901 of 2017)
  • Unifright Tracking Services Ltd v M.D Matovu Transporters Ltd (Miscellaneous Application No. 594 of 2018)
  • Wanjiru Gikonyo & 2 Others versus National Assembly of Kenya & Others Petition No. 453 of 2015
  • Nyamogo & Nyamogo v Kogo (2001) EA 174
  • Caroline Turyatemba & 4 Others v Attorney General & Another (Constitutional Petition No. 15 of 2006)
  • Ariban Tuleshwar v Ariban Pishak Sharma [1979] 4 SCC 389
  • Haridas v Smtusha Rani Banik & Ors Civil Appeal No. 7948 of 2004

Full judgment

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Mushabe v Mutumba & Another (MISCELLANEOUS APPLICATION NO. 8 OF 2020) [2020] UGHCCD 123 (22 May 2020)
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.