Nantumbwe & 3 Ors v Kuteesa (Civil Application No. 294 of 2013) [2013] UGCA 23 (19 December 2013)

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPLICATION NO. 294 OF 2013

1. EDITH NANTUMBWE KIZITO

2. JOSHUA MUKALAZI

3. DAUDI KIWUUTA KIZITO ========================= APPLICANTS

4. ERINA NANKYA

VERSUS

MIRIAM KUTEESA =================================== RESPONDENT

CORAM: HON. MR. JUSTICE S.B.K. KAVUMA, JA

HON. LADY JUSTICE SOLOMY BALUNGI BOSSA, JA

HON. MR. JUSTICE KENNETH KAKURU, JA

RULING OF THE COURT

This Application is brought by Notice of Motion under Rules 2(2), 5, 43(1) & (2) and 44(1) of the Rules of this Court.

It seeks to set aside an order of the learned Registrar of this Court dated 7^th March, 2013 which set aside a consent judgment that had earlier been entered into by the parties to this application. That consent judgment had been entered into by the same learned Registrar on 21^st January, 2013.

At the hearing of this application Mr. Simon Kiiza appeared for the applicants and Ms. Grace Nakalema appeared for the respondent.

Mr. Kiiza, learned counsel for the applicants, at the commencement of the hearing applied to withdraw this application. He contended that it was no longer necessary in view of the Ruling and Order of His Lordship Hon. Justice A.S Nshimye, JA dated 10^th September, 2012.

Ms. Nakalema for the respondent had no objection to the withdrawal of this application. In fact both parties had agreed to that position.

This Court was hesitant to allow the application for withdrawal and adjourned the matter for consideration and reserved the ruling.

We have found nothing in the Rules of this Court that relates directly to consent withdrawal of applications. However Rule 94 which relates to withdrawal of appeals is instructive.

Rule 94(1) stipulates as follows;

1. An appellant may at any time after instituting his or her own appeal in court and before the appeal is called for hearing, lodge in the registry a notice in writing that he or she does not intend further to prosecute the appeal.(emphasis added)

It seems that parties may in compliance with Rule 94 withdraw an appeal with the consent of the all the parties. However this can only be done before the appeal is called for hearing.

Once the appeal is called for hearing it may only be withdrawn with the consent of the court otherwise it would stand dismissed with costs. See the judgment of Tsekooko, JSC in Geoffrey Gatete and Angella Maria Nakigonya versus William Kyobe Supreme Court Civil Appeal No. 7 of 2005 (unreported).

Rule 94 applies, in our view to applications before this Court.

In the process of perusing this application together with other related applications formerly before or now still pending in this Court we stumbled, we must admit, into this application’s long and checkered history.

It had occurred to us upon reading the application and upon listening to the submissions of counsel for the applicant and the respondent that there was more to this application than it actually reveals.

The history of this application as far as we could gather from the court record is as follows;

On 27^th February 2009 the respondent together with one Mohammed Kasule Ssalongo filed a suit in the High Court at Kampala, vide Civil Suit No. 95 of 2009 against the following parties;

1. The Commissioner Land Registration

2. Christine Nakalanzi

3. Edith Nantumbwe Kizito

4. Jimmy Kizito

5. Joshua Mukalazi

6. Daudi Kiwuuta Kizito

7. Erina Nankya

The plaint in that suit was subsequently amended sometime in December 2009. The parties remained the same. Under the amended plaint, remedies prayed for were as follows:-

1. “All incidential instruments for and registration of 2^nd to 7^th defendants on the purported photocopy of a duplicate certificate of title for Kibuga Block 28 Plot 540 at Makerere, hereof annex “P1”, after the previous proprietor, the late Musa Kalanzi Muganzi, and not entered in the Register Book were illegal, void and of no legal consequence.

2. Any purported original certificate of title for the suit land on which the 2^nd to 7^th defendants appear be cancelled.

3. The 1^st defendant enters the name of the late Musa Kalanzi Muganzi in the Register Book as proprietor of the suit land, makes a substitute Certificate of Title in lieu of original certificate that got lost and registers thereon the name of the above deceased person as proprietor and thereafter so enters and registers the plaintiffs’ names as administrators of his estate”.

The suit proceeded ex-parte before His Lordship Hon. Justice Murangira,J in March 2010. The judge was satisfied that the defendants 2 to 7 had been duly served by way of substituted service and that the 1^st defendant had been duly served but none of them had bothered to file a written statement of defence or attend court at the date the suit was called for hearing.

Then hearing proceeded ex-parte with only the plaintiffs adducing evidence upon which the learned judge pronounced his judgment on 4^th October 2010.

The defendants upon learning of the suit and the subsequent judgment applied to have that ex-parte judgment set aside, vide High Court Miscellaneous Application No. 130 of 2011. This application was heard by this same judge who dismissed it for lack of merit.

The applicants then filed a notice of appeal in this court seeking to appeal against the order of the High Court dismissing the application. They also filed in this court two applications one for an interim order of stay execution the other for a substantive order of stay of execution.

When the application for an interim order of stay of execution came up for hearing before the Registrar of this Court, counsel for the respondent objected to it on the ground that there was no substantive appeal. He was overruled. He filed a reference to a single Justice of this Court.

Justice Remmy Kasule, JA heard the application, dismissed it and ordered that the substantive application be fixed for hearing.

On 20^th December 2011 the respondents filed an application in this Court seeking to strike out a notice of appeal on account of late filing.

The applicants realizing that the notice of appeal could be struck out filed Court of Appeal Miscellaneous Application No. 7 of 2012 seeking for extension of time within which to serve the notice of appeal and the letter requesting for proceedings out of time.

That application was heard by the Assistant Registrar of this Court Alex Ajiji and was dismissed on 30.07.2012.

The applicants preferred a reference to single justice of this Court vide Court of Appeal Civil Reference No.98 of 2012. It was heard by Justice Amos Twinomujuni, JA (as he then was) (RIP) a ruling was reserved up to date it has never been delivered.

The parties during the pendency of the ruling entered into a consent judgment which was endorsed by the Registrar of this Court His Worship Erias Kisawuzi, on 21^st January 2013.

On 28^th February 2013, M/s Ahamya and Associates wrote to the Registrar complaining about the consent judgment and pointing out that it was illegal and unlawful.

The Registrar then issued an order setting aside the said consent judgment. The applicants then preferred a reference against the said ruling of the Registrar to a single justice of this Court.

The Reference No. 36 of 2013 was heard by Hon. Justice A.S. Nshimye, JA and was dismissed on 16^th September 2013 the justice having held that as a Single Justice he had no jurisdiction to set aside a consent judgment or any judgment of this Court. The applicants then filed this application to the full Court.

During the pendency of the reference before Justice A.S. Nshimye, JA the parties attempted to enter into another consent judgment. The learned justice declined to endorse it as he had already determined he had no jurisdiction to do so and was not satisfied that the consent settlement was valid.

The parties then came before this Court now seeking to withdraw this application in order to revive the consent judgment entered into by His Worship Kisawuzi on 21^st January 2013.

A decree extracted from the said consent judgment is dated 28^th January 2013. The decree does not indicate that it was by consent of parties.

It reads as follows:

“THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 69/2012

(ARISING FROM MISC. APPLICATION NO. 130/2011)

(ARISING FROM HCCS NO.95 OF 2009)

1. EDITH NANTUMBWE KIZITO

2. JOSHUA MUKALAZI

3. DAUDI KIWUUTA KIZITO ========================= APPELLANTS

4. ERINA NANKYA

VERSUS

MIRIAM KUTEESA =================================== RESPONDENT

DECREE

“This Appeal coming up for final disposal before His Worship ERIAS KISAWUZI in the presence of Mr. Joseph Kyazze Esq. counsel for the Appellants and in the presence of the Appellants and Mr. Ruhinda Ronald Esq. counsel for the Respondent and both parties having entered into a consent, it is hereby DECREED and ORDERED:

1. THAT the Respondent consents to Civil Reference No. 98 of 2012 with the effect that the time within which to file the appeal be and is hereby extended and the appellants’ appeal vide Court of Appeal Civil Appeal No. 69 of 2012 be and is hereby validated.

2. THAT the Appellants have agreed to and shall pay to the Respondents a sum of Ug. Shs. 500,000,000/= (Five hundred Million shillings only) in full and final settlement of all the respondent’s claims and interest in the suit land comprised in Kibuga Block 28 Plot 540 at Makerere and of all the claims and interest of all the beneficiaries of the estate of late Musa Kalanzi Muganzi(represented by the respondent) and the same shall be deposited on the estate Bank Account No. 06030930003 Bank of Africa Ndeeba Branch in the name of Miriam Kuteesa, Ivan Kijjambu and Edward Mugwanya Kamya.

3. THAT the special certificate of title created over the suit land comprised in Kibuga Block 28 Plot 540 and issued by the then Ag. Commissioner Land Registration in favour of the respondent, currently possessed by the respondent and all entries thereon, all done in contravention of a court of Appeal order (dated 28^th February 2012 in Civil Ref. No. 17/2012 and a further Order made on 27^th April 2012, all pending determination of Civil Application No. 268/2011) is null and void and the Duplicate Certificate of Title in the names of JOSHUA MUKALAZI, DAUDI KIWUUTA KIZITO, ERINA NANKYA, JIMMY KIZITO the 2^nd, 3^rd, 4^th and 5^th Appellants be and is hereby declared to be the valid certificate of title.

4. THAT the Commissioner of Land Registration be and is hereby Ordered to cancel the said Special Certificate of Title issued to the Respondent, and all instruments used to effect the registration and transfer of the suit land into the Respondent’s names including all entries on the white page of the suit land.

5. THAT upon complying with the order in (3) herein above, the Commissioner Land Registration be and is hereby Ordered to re-instate JOSHUA MUKALAZI, DAUDI KIWUUTA KIZITO, ERINA NANKYA, JIMMY KIZITO the 2^nd, 3^rd, 4^th, and 5^th Appellants on the Substitute White Page of the suit land, as was the position before the issue of the impugned Special Certificate of Title.

6. THAT upon execution hereof and subject to the terms herein, the respondent’s claims and all or any claims of the beneficiaries of the estate late Musa Kalanzi Muganzi (represented by the Respondent) or persons claiming or deriving title from the Respondent, or the estate over the suit land be and are all hereby conclusively and fully settled, whereof the Appellants as the registered proprietors shall be entitled to vacant possession of the entire suit land free from any incumbrance whatsoever.

7. THAT a permanent injunction doth issue against the respondent and all the beneficiaries of the estate late Musa Kalanzi Muganzi (represented by the Respondent) and any person deriving or claiming to derive title or interest from them, restraining them individually and or collectively from dealing with or otherwise claiming any interest whatsoever in the suit land.

8. THAT upon execution of this consent and in accordance with the terms herein, all pending applications or causes, or suits filed by or against the appellants or the Respondent touching the suit land in all courts of law are all hereby settled and all such applications, causes, or suits whether formally withdrawn or not shall stand automatically settled and or terminated by virtue of this consent order.

9. THAT the interim order issued by the Court of Appeal on 28^th February 2012 pending determination Civil Application No. 268/2011 be and shall be vacated on execution and filing of this consent.

10.THAT either party shall bear its own costs in this appeal and in all pending and all concluded applications, causes, references or suits by or against either party irrespective of any award of costs in any or all those causes or suits to any or against either party.

DECREE be and is hereby entered in the above terms under the hand and seal of this honourable court this 28^th day of January, 2013.

....................(signed)

REGISTRAR.

Jointly extracted by:

1. Kyazze & Co Advocates,

Mezzanine Floor, Plot 2 Jumbo Plaza

Parliamentary Avenue,

P.O.Box 3064, Kampala.

2. M/s R.M.Ruhinda Advocates & Solicitors

Plot 3 Parliamentary Avenue

3^rd Floor Suite 53 Rajah Chambers

P.O.Box 2813, KAMPALA.

Having read the ruling of Hon Justice A.S Nshimye, JA in this matter and having noted that he was not satisfied that there was a valid settlement, We now proceed to examine the said consent judgment and decree to satisfy ourselves as to its validity.

We find that following the ruling of the Assistant Registrar Ajiji, there was no pending appeal as the application to serve a notice of appeal and a letter requesting for proceedings out of time was rejected. The time to file an appeal has already lapsed. The application to serve a letter requesting for proceedings out of time which would have automatically extended the time to file the appeal had also been rejected.

There was therefore no appeal pending in this Court upon which a consent could be entered.

The consent decree which was signed by the learned Registrar His worship Erias Kisawuzi on 28th January 2013 reads in part as follows:-

“This Appeal coming up for final disposal before His Worship Erias Kisawuzi.....”

As we have already noted, there was no pending appeal at the time. There was no application before the Registrar. It is trite that a Registrar of this Court has no jurisdiction to hear and finally dispose of an appeal. There could not have been an appeal coming for final disposal before him. Indeed there was no appeal before the Registrar for final disposal on 21^st of January 2013 when the consent was entered into and there was certainly none before him when he signed the decree on 28^th January 2013. The decree must always bear the date of the judgment.

The order made by the Assistant Registrar, in our view, could only be reversed on appeal. Indeed a reference was preferred against the said order. As already noted above this reference was heard by the late Hon Justice Amos Twinomujuni, JA (RIP) (as he then was).

At the time the Registrar Kisawuzi entered a consent judgment in the matter, the ruling in that reference was still and is still pending. There was nothing pending before him.

In this regard we find that consent could only have been entered into before the Single Justice before whom the application was pending. Accordingly it is our finding that the learned Registrar erred when he entered a consent judgment in a matter which was on appeal before a Justice of this Court.

The consent is accordingly a nullity as it was entered into without jurisdiction.

We are fortified in our above proposition of the law by a number of decisions in common law jurisdictions.

In the Canadian case of Manitoba Windmills versus Vigier [1909] 18 Man LR.427, it was held that;

“It is not competent for parties to a contract to agree to confer jurisdiction upon court of any judicial division other than one in which under statute any action arising out of a breach of the contract may be brought, and if such action is brought in any other court the judge should refuse to try it on the ground of want of jurisdiction”

Again we would follow and adopt the holding of Bramwell LJ in Foster vs Usher Wood [1877] 3 Ex D1 in which he stated as follows:

“It is argued that consent has waived the objection. I do not understand what is meant by waiving the objection. In this case the Registrar had no jurisdiction to make the order or try the action in a country court. The parties cannot by consent confer a jurisdiction which does not exist”.

It was also held by Lord Asher MR in Re: Aylmer Exp. Bischoftsheim [1887] 20 QB 258 that;

“The consent of parties cannot give the court jurisdiction which it does not otherwise possess”

The English Court of Appeal in HINDE versus HINDE [1953] 1 ALL ER. 171 held as follows:-

“The parties could not by consent give the court a jurisdiction which it did not otherwise possess while the Court would recognize a consensual arrangement between the parties it would not lend its process to enforce an order that which was drawn up in the form of an order but which in reality was the statement of an agreement in terms which the court would have no jurisdiction to impose”.

The consent judgment and decree above mentioned are, therefore, null and void and of no effect on that account alone.

It seems to us that the consent judgment is unenforceable also for other reasons in addition to those already given.

We have already noted that in High Court Civil Suit No. 95 of 2009 there were two plaintiffs namely;

1. Mohamed Kasule Ssalongo

2. Miriam Kuteesa.

The plaintiffs seem to have brought the action jointly. No mention is made of the 1^st plaintiff in any of the proceedings before this Court.

The notice of appeal is filed in respect of the 2^nd plaintiff only. Nothing is mentioned of the 1^st plaintiff in the consent judgment. We notice that in the heading of the Ruling of Justice Murangira, J only Miriam Kuteesa the 1^st plaintiff is stated as the only respondent. However, in the body of the ruling the learned judge refers to the two parties. At page 3 of his Ruling he states thus:-

“In 2009 the respondent and her co-plaintiff one Mohammed Kasule Ssalongo first filed Civil Suit No. 95 of 2009 against the applicant later amended their plaint adding 2^nd to 7^th applicants....”

The notice of appeal names only Miriam Kuteesa the respondent herein as the sole respondent whereas the Ruling in High Court Misc. Application No. 130 of 2011 arising from Civil Suit No. 95 of 2009 was in respect of two respondents.

The consent judgment which has the effect of setting aside the ruling of the High Court and the exparte decree in High Court Civil Suit No. 95 of 2009 is not signed by 1^st plaintiff in the original suit. We are of the view that consent cannot be valid in that regard.

Paragraph 4 of the consent judgment directs and orders the Commissioner for Land Registration “to cancel a special certificate of title and all instruments used to effect registration and transfer of the suit land...”

We do not think it is open to parties to consent to such orders. A consent judgment is basically an agreement between parties. It cannot in our view, grant to the parties powers which they would otherwise not possess whilst making an agreement. Parties to a suit cannot legally agree to direct a person who is not party to the agreement or to the consent judgment to do anything he or she has not consented to. See Hirani versus Kassim [1952] 19 EACA 131. The Attorney General, The Uganda Land Commission versus James Kamala and another Supreme Court Civil Appeal No. 08 of 2004 (unreported)

Be that as it may, The Commissioner for Land Registration was a party to the original suit at the High Court. He did not appeal. We do not think the other parties have a right to commit him to a consent judgment to which he is not a party.

The Commissioner for Land Registration has a right to be heard. Since the agreement was entered into without the Commissioner of Land Registration being party, and the consent affects him, it cannot stand on that ground alone. It is therefore null and void in so far as it relates to all parties who are not signatory to that consent.

Paragraph 3 of the consent decree reproduced earlier in this ruling reveals that parties are attempting to determining by consent issues of law. We do not think parties to a suit can determine by consent issues of law and make declarations of law.

The validity of a certificate of title is both a question of fact and law. We do not think it was open to the parties to enter into consent on the terms set out in paragraph 3, 4 and 5 of the consent judgment.

There is no evidence whatsoever on court record to suggest that the respondent Miriam Kuteesa represents the Estate for Late Musa Kalanzi Muganzi. At least she did not at all show how she came to possess such authority. Paragraphs 2, 6 and 7 of the consent judgment are null and void on that account alone.

The general rule is that this court or any appellate court will not allow an appeal to be settled by consent. There is no law providing for consent judgments on appeal, as far as we could ascertain. This proposition of the law is set out in Slaney versus Keane [1970] Ch 243, where it was stated that

“An appeal of course could be dismissed by the consent of the appellant thereby merely giving up his right of appeal and the decision of the court or tribunal below is left standing. Under the general law an appellate court will not allow an appeal by consent. If it were to do so, it would be making an order holding that the decision below was wrong and it would be doing this merely on agreement of the parties and without hearing the case”

Even if we had found that in this case there was a pending appeal, we would still have set aside the consent judgment herein on account that upholding it would have the effect of reversing the decree of the High Court without hearing the appeal.

We have found a case on all fours with present one. The case of Bulasio Konde versus Bulandina Nankya, Court of Appeal Civil Appeal No. 7 of 1980. It is important to note that the court of Appeal then, was the highest appellate Court in Uganda.

It was an appeal arising from a ruling and order of Hon. Khan Ag Judge of the High court of Uganda, setting aside a consent order entered into by a Registrar of the High Court at the request of parties. When the learned judge set aside the said order the defendant appealed to the Court of Appeal. When the appeal came up for hearing before the Court of Appeal, the parties and their counsel sought to settle the appeal by consent on the following terms:-

“By consent of the parties the consent judgment which was entered herein on 15^th June 1979 and was subsequently set aside by the Ag Justice Khan on 26^th November 1979, be and is hereby reinstated as the judgment of the Court”

In order to clarify on this matter we are constrained to quote the judgment of the Court of Appeal in extenso –

The court observed at page 6 of the Judgment and held as follows:-

“The general rule is, as we know, that an appeal could not be allowed by consent without hearing it. This rule was stated in Lees versus Motor Insurers’ Bureau [1953] W.L.R. 620 by the English Court of Appeal then hearing an appeal from a decision of Lord Goddard, CJ. The Plaintiff’s claim had failed before Lord Goddard, C.J, but on appeal his counsel stated that the defendant, the Motor Insurers’ Bureau, had voluntarily agreed to pay the whole of the claim; and he sought an order that the appeal be dismissed. At this Denning, L.J said:

“An appeal could not be allowed by consent, for that would be reversing the judgment of Lord Goddard, C.J. without hearing the appeal”.

A similar point arose in Lloyd versus Rossleigh Ltd [1961] R.V.R.448. We do not have the report of this case, but it is referred to in Slaney v. Kean [1970] Ch.243, a case we will shortly refer to. The following facts are taken from the report of Slaney’s case at P.247. It was a rating appeal from the Lands Tribunal, and the successful ratepayers had agreed with the valuation officer that the appeal should be allowed. When the Court of Appeal was told this by Sir Derek Walker Smith .C.J who appeared for the valuation officer, Sellers, L.J. said:

“They cannot do that. They can agree different figures, but they cannot allow the appeal. We alone can do that. You will either have to withdraw or dismiss it. I am sorry, but we never allow an appeal unless we have heard it. It has the same effect; but I do not think it is fair to the Lands Tribunal or anybody else to allow an appeal by consent. It has never been done in the Court of Appeal, so far as I am aware Sir Derek”.

In the following discussion, Sellers, L.J. said:

“We cannot state the law by an agreement between the parties,” and Devlin L.J. said:

“......you are asking us to straighten the law without satisfying us what has gone crooked, merely because you say two members of the Bar have agreed that it has gone crooked. Plainly we cannot do that”.

Furthermore in that judgment the learned Justices of Appeal went on to hold thus;

“The law as enunciated in these cases shows that:-

1. The parties cannot by consent reverse a judgment of the court.

2. Only an appellant court can reverse a decision of the court below after hearing the appeal.

3. Issues of law cannot be subject to consent orders”.

We entirely agree with the decision in the above case. Since the withdraw requested by the parties would have the effect of reviving a consent judgment in this Court that is a nullity on account of an illegality, we would decline to grant it.

All in all I find that the consent judgment herein is null and void as it is tainted with a number of illegalities. On the authority of His Eminence Emmanuel Cardinal Nsubuga versus Makula International 1982 HCB P.11, this court cannot allow an illegality to stand once it is brought to its attention. The consent judgment in this matter cannot be let to stand.

Although the issue before this court is not directly concerned with validity and or legality of the said consent judgment, the effect of granting a withdrawal would validate the illegal consent judgment.

We accordingly make the following orders.

1. The application for withdrawal is disallowed.

2. This application is hereby struck out.

3. The consent judgment entered into by the parties to this application before the Registrar of this Court on 21^st January 2013 is hereby struck out.

4. No order is made as to costs.

Dated at Kampala this....19^th.... day of....December.... 2013.

...............................

HON. S.B.K. KAVUMA

AG. DEPUTY CHIEF JUSTICE

................................

HON. SOLOMY B. BOSSA

JUSTICE OF APPEAL.

...............................

HON. KENNETH KAKURU

JUSTICE OF APPEAL.