Court name
Commercial Court of Uganda
Judgment date
16 October 2008

The Omukama of Tooro Kingdom v Kibbamu t/a Plantek Consultants (Miscellaneous Application-2008/344) [2008] UGCommC 73 (16 October 2008);

Cite this case
[2008] UGCommC 73
THE REPUBLIC OFUGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC APPL.NO 344 OF 2008
(Arising from C.S No. 426 of 2002)
THE OMUKAMA OF TOORO KINGDOM :::::::::::::::APPLICANT
VERSUS
KIBBAMU
t/a PLANTEK CONSULTANTS:::::::::RESPONDENT

BEFORE: THE HON. LADY JUSTIE M.S ARACH-AMOKO

Ruling
This is an application by the Omukama of Tooro Kingdom hereinafter referred to as the applicant brought under sections 82 and 98 of the CPA and Orders 46 rules 1 and 2 and 52 rules 1 and 3,of the C.P.R for orders that:
1.      
The consent judgment and decree in C.S No. 426 of 2002 dated 7th August, 2002, and the subsequent adjustment dated 4thOctober, 2003 be reviewed and set aside.
2.       Costs of the application be provided for.

It is supported by two affidavits sworn by the Prime Minister of the Tooro Kingdom, the Rt. Hon William Nyakatura.

The application is opposed by the Respondent in his affidavit in reply dated 4th September, 2008.

High Court Civil Suit No. 428 of 2002 out of which the application arose was filed by the Respondent against the Applicant for payment of US 18,464 or its equivalent in Uganda Shillings, general damages for breach of contract, interest and costs. The cause of action is alleged to have arisen out of a contract where the Respondent a senior architect trading as Plantek Consultants allegedly rendered architectural services to the Kingdom for the reconstruction of its palace at Fort Portal in Kabarole district, in 2001.

According to the Respondent, he rendered the said services at the request of the applicant’s agent’s and officials who were responsible for the said project. The applicant paid part of his fees, leaving the said balance outstanding.

The suit was settled out of Court and the consent, the subject of this application was entered into on the 6th August 2002. It was later on adjusted on the 4th October 2003.

The applicant has apparently defaulted and the respondent has attached it’s prime land in Fort Portal, and is threatening to sell it.

The application is based on the following grounds:-
1)      
That the applicant was not presented with a draft consent judgment for approval as required by the rules of procedure and the constitution of the Kingdom of Tooro of 1999.
2)       The consent judgment was entered into by Monsignor Thomas Kisembo (as Regent) and the Right Hon. W.S.R Nyabongo (as then Omuhikirwa of Tooro Kingdom) without authority.
3)       The consent judgment was entered by the said officials (Monsingnor Kisembo and Hon. Nyabongo) without instructions from the applicant.
4)       M/S Mwesigye Mugisha &Co Advocates and Mr David Kasingwire had no instructions and/or authority to further adjust the illegal consent judgment as they did on the 4th day of October 2003.
5)       That the said consent judgment and the subsequent adjustment contravene Article 41 of the constitution of the Kingdom of Tooro of 1999 and its financial Procedures and instructions.
6)       The applicant did not enter into a consultant’s commissioning contract with the respondent and therefore there was no agreement for a consultancy which formed the basis of the consent agreement.
7)       The amount stated in the consent judgment is fraudulent as the respondent did not carry out any of the services which formed the basis of the consent judgment and the particulars whereof are:
a)      
The project funder (the Libyans) clearly agreed to carry out the construction themselves using local labour directly and the Libyan government would pay the respondent for the consultancy services that he had provided but the respondent is claiming from the applicant.
b)       The respondent only drew architectural plans and was duly paid for the same by Mr A. Alowa and Engineer Jubo Ali Bashir the contractors on behalf of Libya, the project funders, yet the respondent made another claim to the applicant.
c)       After the respondent was fully paid for the above services he had rendered, he did not offer any further and extra service yet the respondent claims in the consent for additional money.
8)      
It is in the interest of justice that the said consent and its adjustment be reviewed and set aside, and the main suit heard on merits.
 
The law with regard to applications of this nature is fairly established. Whereas section 82 of the C.P.A and Order 46 of the C.P.R provide for review in civil cases generally, rule 1 thereof entitles only “an aggrieved party” to apply for such review. The expression “any person aggrieved” within he meaning of section 82 and Order 46 means a person who has suffered a legal grievance.

The three cases in which review of a judgment or order is allowed are those of:-
a)      
discovery of a new and important matter of evidence previously overlooked by excusable misfortune,
b)       some mistake or error apparent on the face of the record, or
c)       for any other sufficient reason, but the expression sufficient should be read as meaning sufficiently of a kind analogous to (a) and (b) above. (see: In Re Nakivubo Chemists (U) Ltd 1979 HCB 12 per Manyindo J, as he then was )

The circumstances in which a consent judgment may be interfered with were considered in Hirani-vs-Kassam (1952) 19 EACA 131, where the following passage from Seaton on judgments and Orders 7th Edn vol .1 p 124 was approved:-
“Prima facie, any order made in the presence and with consent of counsel is binding on all parties to the proceedings or action and on those claiming under them.. and cannot be varied or discharged unless obtained by agreement contrary to the policy of the court… or if consent was given without sufficient material facts or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement” (see also: Brooke Bond Liebig (T) Ltd-vs-Mallya [1975]EA 266).

In order to determine the instant application therefore, I will answer three questions:

Firstly, is the applicant an aggrieved party under section 82 and Order 46 rule (1)?.

Secondly, according to the applicant’s counsel, the applicant’s case is based on “any other sufficient reason”
Does the applicant qualify?

Thirdly, does the applicant’s grounds and the evidence adduced meet the conditions set out in the authorities cited to warrant interference with the consent judgement?
Upon careful perusal of the application, the affidavits in support and in opposition and their annextures, and after listening to the submission of both learned counsels, I find that the applicant is not an aggrieved pa rty within the definition in section 82 and Order 46 rule 1. This is because the applicant claimed in its application that the applicant was not presented with a draft judgment for approval that both the judgment and its adjustment contravene the constitution of the Kingdom of Tooro and its Financial Procedure and instructions.

The applicant further contended that the official’s Monsignor Kisembo (its Regent) and Nyabongo (the Omuhikirwa of the Kingdom) had no instructions to enter into the said consent. This contention is not however backed by any evidence since no copy of the said constitution or rules were filed in Court with the affidavits in support. Even if it were true, that would be an internal document of the kingdom which would not affect third parties who have dealings with the Kingdom.

The contention that its lawyers had no instruction is also untenable and unsupported by any concrete evidence. It does not remove the prima facie position that the said lawyers had the full instructions to represent the said Kingdom in the said proceedings. Since here is no notice of withdrawal on court file by the said lawyers to indicate that the applicant had withdraw instructions from them. There is therefore nothing on Court record to show that the judgment was entered by without the approval or instruction from the applicant. Mosignor Thomas Kisembo (the applicant’s regent) and the Rt. Hon. W.S.R. Nyabongo (the Omuhikirwa) signed it, on behalf of the applicant.

As Justice Byamugisha stated in the case of John Genda and Ors-vs- Coffee Marketing Board [1997] 1 KALR, cited by the Respondents counsel, such an applicant cannot be said to be an aggrieved party. This is for the simple reason that a person who has consented to a thing cannot consider himself aggrieved by it.

The applicant’s counsel told Court that the applicant’s case is based on “any sufficient reason”. Again, I do not find any evidence on record to show that there is any sufficient reason to qualify the consent and its adjustment for review. All the information on the court file must have been available to the applicant’s officials and lawyers at the time they entered the consent. It cannot therefore be argued that they were not aware of the material facts at the time they entered the consent judgment.

For instance, it is clear from the correspondences on record and the minutes of meetings in respect of the said project attached to the respondent’s affidavit in reply that the officials were conversant about the funding of the project, the role of the respondent and payments due to him, which were actually partly paid by the time the suit was filed. The applicant even made further payment of shs 15 million out of the consent judgment vide a Stanbic Bank Cheque from the Tooro Empango Committee dated 2nd October 2003 (annexture ‘O’).

The payment voucher (‘O’), was prepared by the applicant’s accountant. Both documents bear the applicant’s stamp. The adjustment was signed by the applicant’s then counsel and witnessed by its Minister for Youth, Culture and Tourism Mr Kasingwire. None of these people have filed any affidavit to show that they were not aware of the circumstances surrounding the project by the time they executed the consent or adjustment. Hon Nyakatura was not a party to the said consent or adjustment. His evidence is therefore at the most hearsay. The fact that leadership has changed at the Kingdom does not nullify the actions of decisions of the former leader.

This application was brought six years after the final adjustment, and as a result of the effort by the respond to execute the decree. It is not only inordinately, late, but it is a ploy to avoid execution and payment of the decreed sum. Court cannot allow such an application.

In conclusion, and for the reasons given, I find that the applicant has not established any sound reason to interfere with the consent judgment and adjustment to warrant setting it aside. I accordingly dismiss the application, with costs to the respondent.


…………………………………..
M.S Arach-Amoko
Judge
17th/10/2008.
Ruling delivered in draft in the presence of:
1)      
Mr Kiiza Fred for applicant.
2)       Mr Magezi John for the Respondent
3)       Mr Okuni Charles
4)       Respondent.

………………………………
M.S Arach-Amoko
Judge
17/10/2008.

Kiiza:
I have instructions from the applicant to seek leave of this court under order 44 rule 2 to appeal the decision of this court because they are convinced that the respondent did not render any extra service to warrant this claim. They believe that it is an unjust enrichment by the respondent and at most fraudulent.
See: Ag-Vs-Keteera & Kagumire Advocates. No 64/03, where the CA held that an application for leave to appeal can be made informally.

Magezi:
Matter is not appeallable as of right. No sufficient grounds have been given to warrant the leave to appeal to the C.A. Application is inordinately late. If leave is given, it will continue to deny the respondent the fruits of the consent judgment for a person who was not vigilant in approaching matters of the consent judgement.

Should you grant leave let it be conditional that the applicant deposits in Court the decretal sum (shs 62 m) or on an account controlled by 2 counsel to earn interest until the hearing and final determination of the case in the C.A otherwise the appellant has no grounds. The application is not meritorious. It Should be dismissed with costs.

Kiiza:
The applicant is dissatisfied. The C.A has decided this in E.A Foam Ltd and Mugereza. Repositing the money is equivalent to denying leave.

Court:
No reason or ground has been advanced to warrant the grant of leave to appeal. Being ‘aggrieved’ is normal for one who has lost an application. Application for leave is denied.


……………………
M.S Arach-Amoko
Judge
17/10/2008.