Wakilii

Tinka v Butera and Another (Miscellaneous Application 38 of 2021)

High Court · [2024] UGHC 430 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of a High Court ruling that set aside a bill of costs and execution proceedings on the ground that they were filed by deceased persons
Decision
Review application dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a review application is not the proper avenue for challenging dissatisfaction with a court's decision. The grounds raised by the applicant were contentious and should have been pursued through appeal, not review. The impugned ruling correctly found that a bill of costs and execution filed in the names of deceased persons were void ab initio. No error or mistake apparent on the face of the record was established.

Outcome

Review application dismissed with costs to the respondents

Facts

Kyairagwire Yolamu and Kiiza Balamu were successful parties in H.C.C.A. No. 59 of 2005. The respondents' appeal to the Court of Appeal was dismissed and the file returned for execution. A bill of costs filed in 2008 in the names of Kyairagwire and Kiiza was taxed in 2019 at UGX 34,298,350. The respondents filed applications to stay execution. During hearing of M.A. No. 145 of 2019, a preliminary point of law was raised that the bill of costs was filed by deceased persons. The court struck out the bill of costs and execution application as void ab initio and ordered return of 62 attached heads of cattle to the respondents. Tinka Charles, as administrator of the estates of the deceased, applied for review of that ruling, arguing it was contrary to Chief Justice's directives, disposed of other pending applications, and wrongly ordered return of cattle.

Issues

  1. Whether the ruling in M.A. No. 145 of 2019 contained an error or mistake apparent on the face of the record warranting review.
  2. Whether a ruling in an application for interim stay that disposed of related pending applications constituted a ground for review.
  3. Whether the court erred in ordering the return of 62 heads of cattle to the respondents.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Review of Judgment — Grounds for Review
For an application for review to succeed, the applicant must establish discovery of new and important evidence previously overlooked by excusable misfortune, discovery of some error or mistake apparent on the face of the record, or any other sufficient reason warranting review.
Civil Procedure — Review of Judgment — Error Apparent on Face of Record
An error or mistake apparent on the face of the record refers to an evident error which does not require extraneous matter to show its incorrectness and is so manifest that no court would permit it to remain on the record.
Civil Procedure — Review versus Appeal — Contentious Matters
Matters that are contentious and require arguments and extraneous evidence should be addressed through appeal and not by way of review application. Mere dissatisfaction with a court's decision or the opinion that a decision is wrong should be pursued by appeal, not review.
Succession & Estates — Actions by Deceased Persons — Void Ab Initio
A bill of costs, application for execution, and consequent attachment filed in the names of deceased persons are void ab initio and cannot be allowed to stand, as any action brought in the names of dead persons is a nullity.

Legislation cited (5)

  • Civil Procedure Act s.82
  • Civil Procedure Rules O.46 r.1
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.2
  • Civil Procedure Rules O.52 r.3

Cases cited (6)

  • Nakivubo Chemists (U) Ltd [1979] HCB 12
  • Levi Outa v Uganda Transport Co [1995] HCB 340
  • Edison Kanyabwera v Pastori Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Fort Hall Bakery Supply v Fredrick M Wangoe (1959) EA 474
  • Mgg Vs. Susan Waguama & 4 Ors [2022] e KLR
  • Mpiji Town Council v Jamil Kisuule (High Court Miscellaneous Application No. 6 of 2016)

Full judgment

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Tinka v Butera and Another (Miscellaneous Application 38 of 2021) [2024] UGHC 430 (26 April 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.