Wakilii

Ndengana v Biretwa (Miscellaneous Application No. 22 of 2012)

High Court · [2013] UGHC 275 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of a High Court judgment under section 82(a) and 98 of the Civil Procedure Act following the original court's order allocating 7 acres to the respondent
Decision
Review application allowed; order allocating 7 acres to respondent set aside; applicant's title to the 7 acres restored.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A High Court may review its judgment where there is sufficient reason to do so under Order 42 rule 1 of the Civil Procedure Rules. Where the original judgment allocated land to a respondent on the mistaken basis that the applicant's certificate of title had expired, but evidence showed a valid extended title existed and had been mentioned during trial, the error constitutes sufficient reason for review. Failure to specify the precise manner of review sought in the notice of motion is a technicality that can be cured under Article 126(2)(e) of the Constitution where the court understands from the pleadings and submissions what relief is sought.

Outcome

Review application allowed; order allocating 7 acres to respondent set aside; applicant's title to the 7 acres restored.

Facts

The applicant sued the respondent in HCCS No. 004/2010 for unlawful entry onto land comprised in Mawogola Block 30 Plot 7. In proof of ownership, the applicant attached a photocopy of his certificate of title showing a 5-year lease term which had expired. The trial court found that the respondent had trespassed and awarded damages of 2,000,000 shillings but also ordered that 7 acres be allocated to the respondent on the basis that the applicant's lease had expired. The applicant contended that by the time of filing suit in 2010, his lease had been extended to a full 49-year term and the original certificate was deposited with Centenary Rural Development Bank for a loan facility. The applicant testified during trial that he had the title with the bank but only had a photocopy. The applicant had been in occupation since 1986 and obtained his allocation from Sembabule District Land Board in 2004. The respondent came onto the scene in 1995. The 7 acres in dispute had always formed part of the applicant's allocated land.

Issues

  1. Whether the failure to indicate the manner in which the applicant wants the judgment reviewed is fatal to the application.
  2. Whether the application for review meets the requirements under section 83 of the Civil Procedure Act and Order 42 rule 1 of the Civil Procedure Rules.

Orders

  • Application allowed.
  • Judgment of Hon. John Chibita Mike J. dated 30th May 2012 delivered by the Assistant Registrar, High Court on 4th June 2012 is reviewed.
  • The order to carve out 7 acres of land from the applicant's land on Mawogola Block 30 Plot 7 is set aside.
  • Respondent to pay the costs of the application with interest at court rate from the date of the ruling till payment in full.

Rules and key headnotes

Civil Procedure — Review of Judgment — Sufficient Reason — Order 42 Rule 1 Civil Procedure Rules
Where the trial court made an order allocating land to a respondent on the mistaken basis that the applicant's certificate of title had expired, but evidence on record showed a valid extended certificate existed and was mentioned during trial, this constitutes sufficient reason for review under Order 42 rule 1 of the Civil Procedure Rules.
Civil Procedure — Review Application — Form and Pleading Requirements — Article 126(2)(e) Constitution
Failure to state in the notice of motion the specific manner in which the applicant wants the judgment reviewed is a mere technicality that can be corrected under Article 126(2)(e) of the Constitution where the court, after reading the pleadings and submissions, understands what the applicant seeks.
Civil Procedure — Inherent Powers — Section 98 Civil Procedure Act and Section 33 Judicature Act
Under section 98 of the Civil Procedure Act, the High Court has inherent powers to make such orders as are necessary in the interests of justice and to prevent abuse of process, and under section 33 of the Judicature Act may grant remedies on such terms as it thinks fit without those remedies being specifically requested.
Land & Property — Certificate of Title — Conclusiveness — Registration of Titles Act Section 59
Under section 59 of the Registration of Titles Act, a certificate of title is conclusive evidence of ownership and the court must admit its sanctity. A party who has a valid certificate of title should not be deprived of land on the basis that an expired photocopy was mistakenly attached to pleadings when the valid certificate existed at the time of trial and was mentioned in evidence.

Legislation cited (8)

Cases cited (5)

  • Mohamed Hussein v Col Kakika and 2 Others (1997)
  • Edison Kajabwita v Tumwebaza (Civil Appeal No. 1006 of 2004)
  • Edson Kanyabweru Vs Paskari
  • Standard Chartered Bank v Grand Imperial Hotel (U) Ltd (Civil Appeal No. 13 of 1999)
  • Re Nakivubo Chemicals and Hon Ako! Oruthei Het. Mis. App. No.47 of 2007 at Soroti

Full judgment

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

Ndengana v Biretwa (Miscellaneous Application No. 22 of 2012) [2013] UGHC 275 (4 February 2013)
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.