Wakilii

Omar v Agonzibwe and Another (Civil Miscellaneous Application No. 1034 of 2020)

High Court · [2021] UGHCLD 124 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of High Court decision in Civil Appeal No. 117 of 2016, which had arisen from Chief Magistrate Court Civil Suit No. 82 of 2014
Decision
Application for review dismissed with costs to the respondents

Observed later treatment

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Holding

The High Court dismissed the application for review. The court held that the applicant failed to demonstrate an error apparent on the face of the record. The court's earlier finding that the trial magistrate improperly conducted the locus visit by relying on evidence from persons not formally called as witnesses, without availing a proper record of proceedings at locus, was a matter of judicial evaluation properly addressed on appeal, not review. Review is limited to errors that are obvious and self-evident on the record, not matters requiring elaborate argument or where two views are reasonably possible.

Outcome

Application for review dismissed with costs to the respondents

Facts

The applicant Faridah Omar filed Civil Suit No. 82 of 2014 in the Chief Magistrate's Court Makindye against the respondents for trespass to land situated at Bugguba LC1 Buggaba Parish Makindye Ssabagabo. The trial magistrate found in favour of the applicant after conducting a locus visit. The respondents appealed to the High Court (Civil Appeal No. 117 of 2016), challenging inter alia the trial magistrate's conduct of the locus visit. The High Court allowed the appeal, finding that the trial magistrate had improperly relied on evidence from local leaders and neighbours at the locus who had not been called as witnesses in court, and that the absence of a proper record of locus proceedings rendered the trial irregular. The applicant then sought review of the High Court's decision, arguing that the court erred in finding an irregularity where no evidence other than that of witnesses presented in court was relied upon.

Issues

  1. Whether the applicant has demonstrated an error apparent on the face of the record sufficient to merit review of the High Court's decision in Civil Appeal No. 117 of 2016.
  2. Whether the High Court erred in finding that the trial magistrate improperly conducted the locus visit by relying on evidence from persons not called as witnesses in court.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Review — Grounds for Review — Error Apparent on Face of Record
An error apparent on the face of the record must be an obvious and self-evident error that does not require extraneous matter or elaborate argument to establish its incorrectness. It must be an error so manifest and clear that no court would permit it to remain on record. Where a view adopted by the court is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible.
Review — Distinction Between Review and Appeal
Review powers ought not to be confused with appellate powers. Review is limited to correcting errors apparent on the face of the record, while appeal enables correction of all manner of errors committed by the subordinate court. A real distinction exists between a mere erroneous decision and an error apparent on the face of the record. Mere error or wrong view is no ground for review although it may be ground for appeal.
Locus in Quo — Purpose and Proper Conduct
The purpose of visiting locus in quo is to check on evidence given by witnesses in court, not to fill in gaps or bolster a party's case. A trial court is not to take on new evidence from parties who were never called in court as witnesses. Failure to conduct the locus in quo properly, including failure to avail a clear record of proceedings at locus, renders the evidence procured in error and the judgment irregular.
Review — Person Aggrieved — Locus Standi
A person aggrieved must be a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title. The right to move the court for review is not restricted to parties to the suit but includes any person who has a direct interest in the matter and who has been injuriously affected. An applicant will not fall within the category of an aggrieved party for purposes of review where the decision was based on merits and the challenge is to judicial evaluation rather than an obvious error on the record.

Legislation cited (7)

Cases cited (8)

  • Ex parte Side Botham in re Side Botham (1880) 14 Ch. D 458
  • Attorney General of Gambia v N'jie [1961] AC 617
  • Mubuuke v Uganda Electricity Board (High Court Miscellaneous Application No. 98 of 2005)
  • Ariban Tuleshwar Ariban Pishak Sharma [1979] 4 SCC 389
  • Kanyabwera v Tumwebaze [2005] 2 EA 87
  • John Siwa Bonin v John Arapkissa (High Court Civil Suit No. 58 of 2007)
  • De-Souza v Uganda (1967) EA 78
  • Paineto Omwero v Saulo S/o Zabuloni (High Court Civil Suit No. 31 of 2010)

Full judgment

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

Omar_v_Agonzibwe_and_Another_(Civil_Miscellaneous_Application_No._1034_of_2020)_[2021]_UGHCLD_124_(30_June_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.