Wakilii

Ojijo v Byakika (Miscellaneous Application 1028 of 2020)

High Court · [2022] UGCOMMC 159 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of an order granting conditional leave to appear and defend arising from Civil Suit No. 0958 of 2018
Decision
Application for review dismissed with costs to the respondent

Observed later treatment

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Holding

Held that an application for review premised on discovery of new evidence or error apparent on the face of the record may be heard by a judge other than the one who made the original order. The applicant failed to establish any error apparent on the face of the record, as the grounds advanced went to the merits of the decision rather than self-evident irregularities in the process. No new evidence was presented that could not have been discovered with due diligence at the time of the original hearing. Review cannot be used as an appeal in disguise to challenge the correctness of judicial findings on the merits. Application dismissed.

Outcome

Application for review dismissed with costs to the respondent

Facts

The respondent filed a summary suit against the applicant seeking recovery of UGX 221,120,000. The applicant was granted conditional leave to appear and defend on 7 October 2019, subject to depositing a bank guarantee of UGX 100,000,000 within thirty days. The applicant failed to comply with this condition. The respondent obtained default judgment on 20 March 2020. The applicant then filed an application for review in November 2019, contending that the conditional order was made on the false assumption that he had access to the invested funds and that it was impracticable to raise the required amount within thirty days. The applicant abandoned the application until the respondent's counsel had it fixed for hearing on 23 November 2021, at which the applicant did not appear. The judge who made the original order had since been transferred from the Commercial Division.

Issues

  1. Whether the court has jurisdiction to review an order made by a judge who has since been transferred from the division.
  2. Whether the order granting conditional leave to appear and defend contained an error apparent on the face of the record.
  3. Whether the applicant discovered new and important matter or evidence justifying review.
  4. Whether there exists any other sufficient reason analogous to the statutory grounds for review.

Orders

  • Application for review dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Review — Jurisdiction — Review by Judge Other Than Original Decision-Maker
An application for review premised on discovery of new and important matter or evidence or on the existence of a clerical or arithmetical mistake or error apparent on the face of the decree may be considered by any judge other than the one who passed the decree or order sought to be reviewed.
Civil Procedure — Review — Error Apparent on Face of Record — Definition and Scope
An error apparent on the face of the record must be self-evident and should not require an elaborate argument to be established. It is an error which strikes one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. Conclusions arrived at on appreciation of evidence cannot be classified as errors apparent on the face of the record.
Civil Procedure — Review — Discovery of New Evidence — Requirements
For review on the ground of discovery of new and important matter or evidence, the applicant must satisfy the court that the proposed evidence would probably change the result and that it could not have been discovered by the exercise of due diligence. The unavailability of the new evidence must not result from lack of due diligence on the part of the applicant or counsel.
Civil Procedure — Review — Distinction from Appeal — Scope and Limitations
An application for review has a limited purpose and cannot be allowed to be an appeal in disguise. Review may not be exercised on the ground that the decision was erroneous on merits, as that would be the province of an appellate court. A review should not seek to challenge the merits of a decision but rather irregularities in the process towards the decision.
Civil Procedure — Review — Sufficient Reason — Ejusdem Generis Principle
Where a statute provides for review on grounds including a catch-all phrase of 'sufficient reason', the reason advanced must be of the same kind or similar in its essentials with either glaring error or discovery of new evidence, applying the ejusdem generis principle. Both involve catastrophic error in the proceedings, outside the merits of the decision, which renders the outcome grossly unjust.

Legislation cited (4)

Cases cited (2)

  • Outa Levi v Uganda Transport Corporation [1975] HCB 353
  • Nyamogo & 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.

Ojijo v Byakika (Miscellaneous Application 1028 of 2020) [2022] UGCommC 159 (31 May 2022)
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.