Wakilii

Namatovu and Another v Nakanjako and 2 Others (Miscellaneous Application No. 137 of 2020)

High Court · [2021] UGHCCD 253 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of judgment arising from Civil Suit No. 40 of 2011
Decision
Judgment reviewed and set aside as against the applicants; applicants' names removed from the judgment and decree of Civil Suit No. 40 of 2011

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that affidavits in reply filed two months after service without leave of court are incompetent and must be struck out. An application for review under Order 46 Rule 1(2) is competent notwithstanding a pending appeal by other parties where the applicant is not a party to that appeal. Where applicants' names were erroneously included on a judgment and decree as administrators of an estate when they were not administrators, this constitutes an error apparent on the face of the record justifying review and setting aside of the judgment as against those applicants.

Outcome

Judgment reviewed and set aside as against the applicants; applicants' names removed from the judgment and decree of Civil Suit No. 40 of 2011

Facts

The applicants were named on the judgment and decree in Civil Suit No. 40 of 2011 as the 4th and 5th defendants and as administrators of the estate of the late Kamulegeya Joseph Junior, who had been the 4th defendant. The applicants brought an application for review, contending that they were erroneously added as defendants in place of the deceased without any application for substitution under Order 24 of the Civil Procedure Rules and without letters of administration showing they were administrators of the estate. The applicants adduced letters of administration proving they were not administrators of the late Kamulegeya Joseph's estate. No application for substitution appeared on the record. The respondents opposed the application on grounds that an appeal had already been preferred, but the applicants were not parties to that appeal as they were not administrators of the estate.

Issues

  1. Whether the respondents' affidavits in reply were competent having been filed out of time without leave of court.
  2. Whether the application for review was competent given the pendency of an appeal by other parties.
  3. Whether there was an error apparent on the face of the record in the judgment and decree of Civil Suit No. 40 of 2011 in naming the applicants as defendants and administrators of the estate of the late Kamulegeya Joseph.

Orders

  • The respondents' affidavits in reply are struck out for being filed out of time without leave of court.
  • The judgment of the High Court in Civil Suit No. 40 of 2011 is reviewed and set aside as against the applicants insofar as they were indicated on the judgment and decree as defendants/administrators of the estate of the late Kamulegeya Joseph.
  • Application allowed with costs to the applicants.

Rules and key headnotes

Civil Procedure — Affidavits in Reply — Time Limits — Filing Out of Time Without Leave
Affidavits in reply must be filed within 15 days from the date of service. Where affidavits in reply are filed out of time without leave of court and no reason is given for the delay, they are incompetent and must be struck out.
Civil Procedure — Review of Judgment — Competence — Pending Appeal by Other Parties
Under Order 46 Rule 1(2) of the Civil Procedure Rules, a party who is not appealing from a decree or order may apply for review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of appeal is common to the applicant and the appellant or where the applicant can present the case to the appellate court. An application for review is competent where the applicant is not a party to the pending appeal.
Civil Procedure — Review of Judgment — Error Apparent on Face of Record — Definition and Test
An error apparent on the face of the record is one that is manifest or self-evident and does not require examination or argument to establish it. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record is made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record.
Civil Procedure — Substitution of Parties — Absence of Application — Erroneous Inclusion in Judgment
Where parties are named on a judgment and decree as defendants and administrators of an estate without any application for substitution under Order 24 of the Civil Procedure Rules and without letters of administration showing they are administrators, their inclusion constitutes an error apparent on the face of the record justifying review and setting aside of the judgment as against them.

Legislation cited (10)

Cases cited (3)

  • Patrick Senyobwa and Rose Nakito v Lucy Nakito (Miscellaneous Application No. 1103 of 2018)
  • Batuk K. Vyas vs Surart Borough Municipality &Ors (1953) Bom 133
  • Nyamogo and Nyamogo Advocates v Kago [2001] 2 EA 173

Full judgment

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

Namatovu and Another v Nakanjako and 2 Others (Miscellaneous Application No. 137 of 2020) [2021] UGHCCD 253 (24 May 2021)
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.