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Mutiibwa and Another v Modia Investments (U) Limited and 2 Others (Miscellaneous Application 103 of 2023)

High Court · [2024] UGHC 194 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of judgment and decree arising from High Court Civil Suit No. 0210 of 2009
Decision
Application for review dismissed with costs to the 1st and 3rd Respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that fraud must be pleaded and proved in the original suit and cannot be raised for the first time in a review application. An error apparent on the face of the record must be manifest without requiring extraneous evidence. The applicants, who claim to be beneficiaries of an estate, had knowledge of the alleged fraudulent dealings since 2009 but failed to intervene in the original suit or take remedial action. Raising fraud in 2023 while claiming they only learned of it in 2018 is untenable and in bad faith. The application is also barred by limitation as the land was registered in the first respondent's name in 2010. Application dismissed with costs.

Outcome

Application for review dismissed with costs to the 1st and 3rd Respondents

Facts

The late Bagenda was registered proprietor of land comprised in Buwekula Block 186 Plot 2. Upon his death the land was registered in the name of Eria Kesi Mujjabi as Administrator on 19 August 2005. The Administrator died on 25 August 2005 after granting Powers of Attorney to Michael Sebaduka Mwebe on 5 May 2005. Mwebe was registered on the title on 20 October 2005, subdivided the land into Plots 3 and 4, and mortgaged it to Kampala Financial Services Ltd for UGX 80,000,000. The land was transferred to Modia Investments (U) Ltd (1st Respondent) who became registered proprietor on 24 March 2010. Mwebe filed HCCS No. 0210 of 2009 against the Attorney General and National Water & Sewerage Corporation but died before conclusion. The 1st Respondent took over the suit. On 26 March 2013 the court ruled in favour of the 1st Respondent as lawful owner and ordered the 2nd Respondent to pay UGX 492,128,000 as compensation. The applicants, claiming to be grandchildren and beneficiaries of Bagenda's estate, filed this review application in 2023 alleging they learned of fraudulent dealings in 2018.

Issues

  1. Whether the applicants are aggrieved persons with standing to seek review of the judgment and decree in HCCS No. 0210 of 2009.
  2. Whether there is any error apparent on the face of the record warranting review of the judgment.
  3. Whether the application for review is barred by limitation.
  4. Whether fraud in land transactions constitutes sufficient ground for review where fraud was not pleaded or litigated in the original suit.

Orders

  • Application for review dismissed.
  • Costs awarded to the 1st and 3rd Respondents.

Rules and key headnotes

Civil Procedure — Review of Decrees and Orders — Standing — Aggrieved Person
A person is aggrieved for purposes of review under section 82 of the Civil Procedure Act if he or she has suffered a legal grievance, meaning the judgment is against him or affects his interests. An aggrieved party need not necessarily have been a party to the suit in which the decree or orders sought to be reviewed were issued, provided the third party can prove they are an aggrieved person who has suffered a legal grievance.
Civil Procedure — Review of Decrees and Orders — Grounds for Review — Error Apparent on Face of Record
An error apparent on the face of the record must be one which does not require any extraneous matter to show its correctness. It must be an error so manifest and clear that no court would permit such an error to remain on the record.
Civil Procedure — Review of Decrees and Orders — Fraud as Ground — Pleading and Proof Required
Fraud must not only be pleaded but also proved in the original suit. Where fraud was never pleaded or litigated in the suit, it cannot be raised as a ground for reviewing the decree. Entertaining fraud allegations in a review application would amount to re-hearing the suit, which is outside the ambit of the court under section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules.
Civil Procedure — Limitation — Application for Review — Time Bar
An application for review seeking recovery of land registered in a party's name without disclosing any grounds of disability is rendered incompetent on account of limitation. Where applicants had knowledge of alleged fraudulent dealings since the original suit in 2009 but failed to intervene and only filed a review application in 2023, the application is barred by limitation and premised on falsehood as to when they acquired knowledge.

Legislation cited (2)

Cases cited (6)

  • Re Nakivubo Chemists (U) Ltd [1971] HCB 12
  • Ladak Abdullah Hussein v Griffiths Isingoma Kakiiza and Others (Civil Appeal No. 8 of 1995)
  • Mohamed Alibhai v W.E Bukenya Mukasa and DAPCB (Supreme Court Civil Appeal No. 56 of 1996)
  • F.X. Mubuke v Uganda Electricity Board (High Court Miscellaneous Application No. 98 of 2005)
  • Edison Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Independent Medico Legal Unit V The Attorney General Of Kenya. MA No.2 of 2012

Full judgment

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

Mutiibwa and Another v Modia Investments (U) Limited and 2 Others (Miscellaneous Application 103 of 2023) [2024] UGHC 194 (25 March 2024)
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.