The High Court of Uganda has addressed two significant legal questions in an August, 8th decision:
Whether fraud can be adjudicated within an application for review, and whether a third party to an order can apply for a review of that order.
The decision arose from an application for review by one Pulle Kizito Herman Gerald and one Pulle Ann Josephine, beneficiaries of the estate of the late Hugh Francis Pulle, who sought to overturn a ruling and vesting order that transferred ownership of the estate land to the various respondents.
The applicants filed the application under Sections 82 and 98 of the Civil Procedure Act, challenging the vesting order granted in Miscellaneous Cause No. 069 of 2022.
This order had transferred ownership of several plots of the suit land from one Nakazzi Agatha Pulle to the respondents, including Nakachwa Hanifa Semanda, Kintu Abubaker, Kiwanuka Peter Ssamula, Sentongo Martin Grace.
The applicants contended that their sister, Nakazzi Agatha Pulle, had fraudulently transferred the land into her name through forgery of signatures and subsequently sold the land to the respondents, thereby depriving them of their inheritance.
They asked the court to review and set aside the ruling and vesting order of the Court.
Hon. Lady Justice Aisha Naluzze Batala (pictured), who presided over the case observed that fraud is a serious allegation that requires specific pleading and strict proof, which cannot be adequately done within the confines of a review application which is often conducted by way of affidavit evidence.
“Fraud is a serious matter and the party against whom it is alleged should be afforded sufficient notice to enable him or her to answer the allegations,” Justice Batala stated.
She further noted that, “The court cannot permit the applicants to effectively mask an ordinary suit as an application for review. The evidence presented by the applicants is more fitting for an ordinary suit.The
applicants’ allegations cannot be conclusively dealt with by mere affidavit evidence and such serious allegations of fraud cannot bedecided on the strength of imagination.”
According to the Judge, the proper forum for resolving such allegations as fraud is through a full trial, where the allegations can be fully explored and determined based on a thorough examination of the evidence.
As such, the Court found that the review application was not the appropriate mechanism for addressing the applicants’ claims of fraud.
“Consequently, I find that the applicants are entitled to initiate an independent suit against the respondents regardless of the decision in Miscellaneous Cause No. 069 of 2022 to thoroughly investigate the matters in question. In the premises, the application fails with no orders as to costs.”
On the other issue, Justice Batala addressed whether third parties to a court order can seek a review of that order. In this case, the applicants were not parties to the court decision where the vesting order they sought to overturn arose.
She affirmed that, under Section 82 of the Civil Procedure Act and Section 98 of the Civil Procedure Act which provides for “inherent powers of the Court” to do justice, third parties who are “aggrieved persons” indeed have the right to apply for a review as long as it can be demonstrated that they fall into the category of “aggrieved persons” that is; that they have sufficient interest in the court order in question.
Section 82 of the Civil Procedure Act provides that:
“Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.”
In this case, the applicants had demonstrated their “sufficient interest” because they claimed the ruling and the vesting order in question had the effect of depriving them of their beneficial interest in the estate of their late father.
“The applicants are children of the late Hugh Francis Pulle who was the former registered proprietor of the suit property before it vested in Nakazzi Agatha Pulle Alice. A third party who was not party to an action can bring an application for review provided they establish that they fall within the category of
an “aggrieved person.” I find the applicants to fall within that category as they establish sufficient interest in the matter. My analysis of the above decisions and the provisions of the law cited is that, it is clear that a third party to an Application or suit can Apply for the review of a judgment, order, ruling and or decree
arising from a suit or application to which such a person or persons were not parties, in this case the Applicants as persons who were not parties to the Application from which the vesting order arose but under the law they can bring an application for review and that being the case this Application is proper before court.” Justice Aisha Naluzze Batala ruled, referencing the cases of Ladak Abdulla Muhammad Hussein Vs Griffiths Isingoma Kakiiza & 2 others [SCCS No. 8 of 1995] and Muhammad Allibhal Vs W.E Bukenya Mukasa & 2 Others [SCCA No. 56 Of 1996].
Parties: Pulle Kizito Herman Gerald and Anor v. Nakachwa Hanifa Semanda & 4 others Counsel: Mpagi Sunday of Mpagi Sunday & Co. Advocates (for the Applicants), Mirembe Maureen of Kabuzire of Mbabaali & Co Advocates (for the 1st and 2nd respondents) and Okurut Moses of M/s Okurut Law Chambers (for the 3rd and 4th respondents.)
Benjamin Ahikiiriza is a legal writer and publisher of the Legal Reports Digital Media.