THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISC. APPLICATION NO. 281 OF 2013
5
(ARISING FROM COMMERCIAL CIVIL SUIT NO. 245 OF 2008
AND EMA 88 OF 2011)
WILLIAM AKANKWASA TUMWINE
……………………………………………… APPLICANT/ DEFENDANT
10
VERSUS
VORA LIMITED............................. RESPONDENT / PLANTIFF
15
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
RULING
By this application, the Applicant William Akankwasa Tumwine sought orders of this court
to:1) Set aside and review the exparte judgment passed by this court on 03.10.08 and the
20
resultant decree.
2) The monies paid and the property handed over to the Respondent by the Applicant in
execution of the impugned decree be refunded to the Applicant.
3) The Applicant effects the transfer of the suit land into the names of the Respondent.
4) The Applicant be paid damages for loss accruing from the execution of the impugned
25
decree by the Respondent as this court deems fit.
The application was supported by the affidavit of the Applicant which was read and relied
upon at the hearing.
Briefly, the Applicant contends that he obtained a decree in respect of the suit property of the
judgment and decree passed against him and numerous execution proceedings have resulted
30
into loss of properties attached, of $600,000, which were auctioned for paltry sums, leaving
an outstanding balance of the decreeful sum of $120,000 due to the Respondent unjustly.
There is sufficient reason to warrant review of the judgment and decree and the orders that
have occasioned a miscarriage of justice to the Applicant.
The Applicant instituted a suit No. 33/2008 against the Commissioner of Land Registration
wherein an order was issued reinstating the Applicant’s proprietary interest in the suit
5
property to which the decrefal sum in the main suit is related.
The circumstances accordingly amount to sufficient reason to warrant review of the judgment
and decree of this court against the Applicant.
And it is just and equitable, that the
application be granted.
Further that, there is an affidavit in reply deponed by Andrew Munanura Advocate giving a
10
background to the suit and contending that it is false for the Applicant to state that the
judgment was exparte.
There was an aborted sale of Plot 13, Mackenzie Vale and the Applicant opted to refund the
monies as per the judgment, as his title was also being challenged and he was seeking refund
from the company that sold him the land.
15
The Applicant began to refund the judgment sums voluntarily, and there are many other
claimants to the land and several decisions in respect of the same land two of which are
contradictory – paragraph 10 -15.
The Respondent is only interested in refund of the monies it paid in attempt to purchase the
land, which has been contested since 2008. As a result of which the Respondent has had to
20
defend numerous suits arising from its involvement in the sale agreement with the Applicant.
– Paragraph 17.
The Respondent has suffered, inconvenience as a result and was not able to take benefit of
the land.
The Applicant opted to refund the Respondents monies under the judgment leaving a balance
25
of $120,000 and legal costs.
There is no justification for reversing the consent refund process mutually agreed upon and
undertaken by the parties.
The Respondent is no longer interested in acquisition of the property as the same has been
frustrated and terminated by the parties and the application seeks to force sale, which is not
30
equitable.
The Respondent’s instructions are to obtain the balance of the purchase price. The Applicant
filed an affidavit in rejoinder dated 27.09.13 contending that the contents of the affidavit in
reply are false.
It is apparent from the pleadings that this application has overstayed in court.
5
On 11.06.15 when Counsel appeared they indicated to court that all efforts to resolve the
matter amicably had failed and court should go ahead and determine the same. It was agreed
that written submissions had been filed and the same should be adopted and validated by
court and a ruling based on the documents made.
Court accordingly adopted those
documents and Counsel were notified that ruling would be delivered on notice.
10
Both Counsel filed lengthy submissions which included rejoinders and supplementary
submissions.
It is clear from the application that the Applicant sought dual orders. That is to review the
judgment complained of and to set aside the orders made there under.
In addition to which he claimed refund of the monies paid to the Respondent, transfer of the
15
suit land into the names of the Respondent plus damages and of course costs of the
application.
The issue is whether the orders sought can be granted considering the provisions of law
under which they were brought and the circumstances of Civil Suit 245/2008 under
which the orders sought to be set aside were made.
20
Counsel for the Respondent contended that since civil suit 2008 was brought under summary
procedure, the application ought to have been made under 0.36r11 C.P.R and not 0.46 C.P.R
and S. 82 and 98 of the C.P.A, and ought not be entertained or granted as it is premised on the
wrong law. He prayed that it be struck out.
However, Counsel for the Applicant stated that Respondents Counsel had misunderstood the
25
nature of the application as it clearly indicates that the Applicant is aggrieved by a decree of
court and had legal grounds arising out of Miscellaneous Cause 33/2008 which have affected
the proprietary position of the suit property. And insisted that the application was brought
under the appropriate procedure.
Upon giving the submissions of both Counsel the best consideration, I can in the
30
circumstances, court overrules the objections of Counsel for the Respondent on the ground
that courts have consistently held that “the citing of a wrong law does not vitiate the
proceedings. It does not go to the jurisdiction or cause any injustice to the opposite side.
Rules of procedure were meant to be handmaidens of justice and not to defeat it”. – Boyes
vs. Gathure [1969] IEA 385 and Saggu vs. Road Master Cycles (U) Ltd [2002] IEA 258.
The application will accordingly not be struck out and court will now proceed to determine
whether court should set aside exparte judgment of 03.10.08, order refund of the money paid
5
by the Applicant in execution and that the property be handed over to the Respondent,
Applicant effects transfer of the suit land to the Respondent and Applicant paid damages.
The issues will be dealt with in the order they have been set out.
Setting aside decree and exparte judgment:
It was the contention of Counsel for the Respondent that this matter is Res Judicata and for
10
the Applicant to seek to revive it is an abuse of court process. He pointed out that in
Miscellaneous Application 551/2008 from HCC.S 245/2008, the Applicant sought stay of
execution and setting aside the judgment of court of 03.10.08. The application was heard on
merit and dismissed on 27.10.08. The application addressed the matters raised in the present
application.
15
Counsel for the Applicant contended that there were sufficient reasons advanced for review
of the judgment or decree. He relied upon the case of Sowedi Kasule vs. Henry Kasujja
[1979] HCB 99 as the decree was appealable and there was discovery of new and important
matters of evidence after decree was given or any other sufficient reason. And review would
enable parties to correct mistakes or settle their rights in a proper and conclusive manner.
20
That leave to appear and defend was denied on the grounds that the Applicant had no title to
pass to the Respondent.
Further that the Applicant’s title had been wrongfully cancelled by the Commissioner of
Lands. Respondent and Applicant filed Miscellaneous Application 529/_ however, the state
of affairs has since been reversed hence validating the Respondent’s title. Since the status
25
quo had been preserved pending the determination of Miscellaneous Cause 33/2008 which
was denied in favor of the Applicant case if proper for review.
It is not disputed that the Applicant filed Application 529/2008 on 03.10.08 seeking
unconditional leave to defend the suit 245/2008. The application was heard and dismissed
with costs as evidenced by Exhibit 2 of the Respondents reply.
30
The Applicant could have appealed against the order but did not and without leave to defend
the suit, the Applicant cannot be seen to turn around and apply for review.
Further, the Applicant had earlier undertaken to refund the sums paid to him by the
Respondent an indication that he was not disputing the claim.
-See undertaking dated
17.04.08. When the Applicant failed to refund as promised the suit was filed, judgment
entered and execution issued. While the Applicant claims that there were subsequent orders
5
reinstating title to him, the available documents show otherwise. The title to the disputed
property is in the names of Catherine Zawedde Muwanga and Emmanuel Muwanga as joint
tenants – Refer to letter of Counsel for Respondent to Counsel for Applicant dated 12.08.15
and the attachments thereto belieying the Applicant’s claim that the title was reinstated to
him. The agreement to terminate the sale between the parties, and for the agreement to refund
10
still stand, so does the judgment against the Applicant and the attendant execution.
Even if court were to be persuaded that review was an appropriate remedy, the review of the
judgment would be an exercise in futility in the circumstances outlined above.
The Defendant cannot be forced to go ahead with the purchase of the property which is not
registered in the names of the Applicant.
15
The best course of action would be for the Applicant to pursue those who have made claim to
his alleged title.
The Applicant’s submission that the exparte judgment was entered irregularly and illegally
cannot be sustained either. By the time the alleged order for preserving the status quo was
issued, the Applicant had already made an undertaking to refund the purchase money to the
20
Respondent - 17.04.08 Miscellaneous Cause 33/2008 was filed on 12.05.08.
In my view, the status quo to be maintained was that of the agreement to refund the money.
If the title had been wrongfully cancelled by Commissioner Land Registry and the state of
affairs have since been reversed as contended by the Applicants and the title of the
Respondent validated, then the certificate would not be in the names of other parties other
25
than the Applicant.
It is the finding of this court that Applicant has not proved that the judgment was obtained
illegally with the intention that the Respondent unjustly enriches himself. The undertaking to
refund dated 17.04.08 was duly signed voluntarily by the Applicant. Part payments were
made and only the balance of the payment remains due and owing and ought to be paid by the
30
Applicant. It would be a travesty of justice for this court to direct the Respondent to refund
money to the Applicant and have the property handed over to him when it is not in the
Respondent’s names.
The Applicant is not in a position to transfer the property into the names of the Respondent.
Damages: The Applicant’s claim for damages cannot be sustained either. There is nothing to
show that the inconvenience if any suffered by the Applicant was occasioned by the
Respondent. If anything it was the Respondent who suffered greater inconvenience due to the
Applicant’s failure to execute the purported sale to its logical conclusion. There are also
5
many other parties seeming to lay claim to the property in issue, that are challenging the
Applicant’s claim to the land and the Applicant should be claiming damages from them if he
so wishes but not from the Respondent. To order Respondent to pay damages would be to
wrongly visit the responsibility on him.
Most of all the remedies / prayers 2, 3 and 4 sought by the Applicant cannot be granted at this
10
stage. They could only be properly determined if judgment is reviewed or set aside and the
parties heard on those issues.
The affidavit in reply is properly on record as the Applicant waived the right to object to it by
applying to file an affidavit in rejoinder instead of seeking to have the affidavit in reply struck
out. The Applcant is accordingly estopped from rejecting the affidavit in reply.
15
The application and supporting affidavit were served on the Respondent on 12.04.08 –
Counsel for the Respondent sought clarification as to how the matter ended up in Land
Division when it is of a commercial nature – see letters dated 07.05.13,
The affidavit in reply was filed on 09.09.13 in Commercial Court and rejoinder was filed on
27.09.13 though court had directed that the rejoinder be filed by 18.09.13.
20
For all those reasons, this application fails and is hereby dismissed with costs to the
Respondent. The balance due and owing to the Respondent from the Applicant ought to be
paid and execution can continue.
25
FLAVIA SENOGA ANGLIN
JUDGE
04.09.15