Wakilii

Zura Mohammed Nasim v Latim (Civil Appeal No. 27 of 2017)

High Court · [2019] UGHC 37 · 2019 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from a ruling granting a third-party application for review of decree under Order 46 rules 1 and 2 of The Civil Procedure Rules
Decision
Review order set aside; original decree in favour of appellant reinstated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that a principal represented by an agent in litigation cannot later claim to be a 'person aggrieved' under Order 46 rules 1 and 2 of The Civil Procedure Rules. Where an agent has authority (express, apparent or implied), knowledge acquired and actions taken by the agent within litigation are imputed to the principal. The respondent, whose agent defended the original suit on his behalf without disclosing the agency relationship, was bound by the decree. Further, to qualify for review as a third party, a person must not have been privy to the proceedings directly or indirectly through an agent, must show pre-existing rights adversely affected by the decree, and must demonstrate diligence. A person aware of litigation affecting his rights who chose not to intervene cannot later seek review. The appeal was allowed and the review order set aside.

Outcome

Review order set aside; original decree in favour of appellant reinstated

Facts

The appellant sued for recovery of plot 23 School Road, Gulu, claiming her late husband purchased it in 1977. After fleeing to exile and returning, she found Oryem K.L. Watmon's family in occupation. Oryem defended the suit, admitting he obtained a lease offer but denying fraud. He failed to appear at trial and judgment was entered for the appellant on 25 February 2016. Nine months after judgment, the respondent Latim Andrew, who had become registered proprietor of plot 38 School Road on 5 September 2014, applied to review the decree, claiming Oryem was merely his caretaker and he had not been served with court process. The trial court granted the review. The appellant appealed, arguing the respondent lacked locus standi and had been privy to proceedings through his agent.

Issues

  1. Whether the respondent had locus standi to apply for review of a decree as a third party under section 82(a) of The Civil Procedure Act and Order 46 rules 1 and 2 of The Civil Procedure Rules.
  2. Whether a principal whose agent defended litigation on his behalf can later qualify as a 'person aggrieved' entitled to seek review of the decree.
  3. Whether a person who acquired an interest in land after proceedings commenced, but before judgment was delivered, and was aware of the litigation through his agent, was entitled to seek review of the decree rather than intervening in the proceedings.

Orders

  • Appeal allowed.
  • Order reviewing the decree of the court below is set aside.
  • The decree of the court below is reinstated.
  • Costs of the appeal awarded to the appellant.
  • Costs of the court below awarded to the appellant.

Rules and key headnotes

Civil Procedure — Review of Decree by Third Party — Locus Standi — Requirements under Order 46 rules 1 and 2
Unless a person is prejudicially or adversely affected by a decree, he or she is not entitled to file an application for its review under section 82(a) of The Civil Procedure Act and Order 46 rules 1 and 2 of The Civil Procedure Rules. A person considering himself or herself aggrieved means a person who has suffered a legal grievance.
Civil Procedure — Agency — Imputation of Knowledge and Conduct — Principal Bound by Agent's Actions in Litigation
Even though an agent is not under the full control of the principal, any knowledge acquired and action taken by the agent within litigation is chargeable and imputed to the principal. As long as an agent has authorisation, either express, apparent or implied, he or she may bind the principal legally. A principal cannot insulate himself or herself from the actual knowledge acquired by his or her agent.
Civil Procedure — Review of Decree — Principal Represented by Agent — Person Aggrieved
A principal represented by an agent in litigation cannot qualify to be 'a person aggrieved' within the meaning of Order 46 rules 1 and 2 of The Civil Procedure Rules. For one to qualify as a person aggrieved, that person must not have been privy to the proceedings, directly or indirectly through an agent, that resulted in the decree sought to be set aside.
Civil Procedure — Review of Decree — Pre-existing Rights — Timing of Acquisition of Interest
A person applying under Order 46 rules 1 and 2 of The Civil Procedure Rules must show that the rights prejudicially or adversely affected by the decree sought to be set aside are pre-existing rights. They must have accrued before the commencement of the litigation. For rights which did not exist at the commencement of the litigation but accrued before the final determination, diligence would require the applicant to intervene before the conclusion of the litigation.
Civil Procedure — Review of Decree — Duty to Intervene — Person Aware of Litigation
The expression 'person aggrieved' does not include one who was aware of the litigation, who knew that his or her rights would certainly be affected by the decision, had the opportunity and means to intervene but chose to pass up the opportunity to intervene. A person aware that the underlying suit will most certainly affect him or her interests or rights, who despite that knowledge chooses to pass up an opportunity to intervene, should not be permitted to later litigate the issues through a review application.
Civil Procedure — Agency — Types of Authority — Express, Implied and Apparent Authority
A principal is bound by the acts of the agent executed on his or her behalf where the agent has authority, which may be express, implied or apparent. Express authority means made in words; implied authority means the agent has authority to perform acts incidental to or reasonably necessary to carrying out the transaction for which he or she has express authority. Apparent authority arises where the principal gives the third party reason to believe that the agent had authority.

Legislation cited (8)

Cases cited (11)

  • Yusufu v Nokrach [1971] EA 104
  • In re Nakivubo Chemists (U) Ltd [1979] HCB 12
  • Ladak Abdulla Mohammed Hussein v Griffiths Isingoma Kakiiza and two others (Supreme Court Civil Appeal No. 8 of 1995)
  • Mohamed Alibhai v W.E. Bukenya Mukasa and another (Supreme Court Civil Appeal No. 56 of 1996)
  • Martin v. Wilks 490 U.S. 755, 109 S. Ct. 2180 (1989)
  • Richards v. Jefferson County, 517 U.S. 793
  • G. H. Mumm Champagne v. Eastern Wine Corp., 52 F.Supp. 167 (S.D.N.Y. 1943)
  • Father Nanensio Begumisa and three Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Attorney General v Florence Baliraine (Court of Appeal Civil Appeal No. 79 of 2003)

Full judgment

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Zura Mohammed Nasim v Latim (Civil Appeal No. 27 of 2017) [2019] UGHC 37 (29 August 2019)
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.