Court name
Commercial Court of Uganda
Judgment date
25 May 2012

Eleko Balume & 2 Ors v Goodman Agencies Ltd & 2 Ors (Miscellaneous Application-2012/12) [2012] UGCommC 54 (25 May 2012);

Cite this case
[2012] UGCommC 54

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NUMBER 12 OF 2012

[ARISING FROM MISCELLANEOUS APPLICATION NUMBER 34 OF 2011]

[ARISING OUT OF HIGH COURT CIVIL SUIT NUMBER 719 OF 1997]

 

  1. ELEKO BALUME}
  2. KAGABO JEAN CLAUDE}
  3. JOSEPH SIMBIZI} ...............................................................                                                                                                               .APPLICANTS

VERSUS

  1. GOODMAN AGENCIES LTD}
  2. HASA AGENCIES (K) LIMITED}
  3. ATTORNEYGENERAL}.......................................................                                                                                                                     RESPONDENTS

 

BEFORE HON. JUSTICE CHRISTOPHER MADRAMA

RULING

The Applicants application was lodged by notice of motion under section 33 of the Judicature Act, sections 34 and 98 of the Civil Procedure Act cap 71; order 1 rule 10 (1); order 9 rule 12; order 46 rules 1 (1) (a), (2); (2), (8) and order 52 rules 1, 2 and 3 of the Civil Procedure Rules. It is for orders that execution of the consent judgment in High Court civil suit number 719 of 1997 be stayed. That the consent judgment in High Court civil suit number 719 of 1997 is set aside. That the first, second and third Applicants be joined as parties to civil suit number 719 of 1997. That civil suit number 719 of 1997 is handled on its merits and costs of the application are provided for. In the alternative the notice of motion seeks for orders that execution of the consent judgment in High Court civil suit number 719 of 1997 be stayed.  Alternatively that the consent judgment in high court civil suit number 719 of 1997 by reviewed and for costs of the application to be provided for.  The notice of motion is supported by the affidavit of the first Applicant Mr Eleko Balume.  The grounds in the notice of motion are that:

  1. The Applicants together with other persons are the lawful owners of motor vehicles constituting the subject matter in high court civil suit number 719 of 1997.

 

  1. The Applicant with other motor vehicle owners hired out the said vehicles to the first and second Respondents (joint hirers)

 

  1. Under the hire agreement signed between the vehicle owners and the hirers, clause 3 thereof empowered the hirers to enforce any legal rights arising under the said agreements, for and on behalf of the vehicle owners.

 

  1. Consequently, while in the custody of the first and second Respondents, the motor vehicles were commandeered and confiscated by the military personnel and agents of the third the Respondent.

 

  1. The first and second Respondents then sued the third Respondent to recover the motor vehicles or their equivalent value.

 

  1. The Applicants and other vehicle owners were not party to the suit.

 

  1. The parties to the said suit purported to enter a consent judgment wherein the first and second Respondents would claim among other things the value of the motor vehicles.

 

  1. It is just and equitable that the instant application be granted.

The affidavit in support sworn by the first Applicant is that he is a male Congolese of sound mind and the lawful administrator of the estate of the late John Muzerwa.  He avers that the late John Muzerwa was the lawful owner of motor vehicles registration numbers KN 6511 M and KV 3708 B.  He was amongst the persons who hired out the motor vehicles to the first and second Respondents as joint hirers.  While in the custody of the first and second Respondents the vehicles were confiscated and vandalised.  The first and second Respondents then sued the Attorney General to recover the said motor vehicles and their goods which were loaded thereon.  A consent judgment was entered in which the first and second Respondents claimed among other things the value of the motor vehicles.  He avers that the first and second Respondents have since acted in a manner as to deny the Applicants together with other motor vehicle owners their entitlement to the value of the said motor vehicles.  The first Respondent applied to the high court to compel the Treasury Officer of Accounts to pay the decreed sums under the consent judgment.  He avers that under the terms of the hire agreements it was not necessary for the vehicle owners to be party to the suit.  He contends that it is important for this court to stop any payments in high court civil suit number 719 of 1997 until further orders are made by this honourable court.  Furthermore that it is just and equitable that the consent judgments are vacated and various Motor vehicle owners are joined as parties to the suit which should be heard on merits.

The affidavit in reply is sworn by Nicholas Were the managing director of the first Respondent.  He avers that the consent judgment/Decree was executed in high court civil suit number 719 of 1997 in which Goodman Agencies Ltd was the first Plaintiff while Emmanuel Hatangi Mbabazi, Felesi Leonadas and Janvier Busogi where the 3rd, 4th, and 5th Plaintiffs. It was executed with the Attorney General. HASA Agencies (K) LTD’s suit was dismissed on an application by the Attorney General.  The Applicant’s in this matter are strangers to the above arrangement.  The deponent contends that the Applicants have no basis of claim under the consent judgments at all as they never executed any hire agreements with HASSA agencies (K) LTD and they never filed any suit.  The consent judgment was executed with the full blessing and approval of the Solicitor General and the Attorney General of Uganda after full consultations with the various government departments.  The consent judgment was confirmed in the judgment of the Constitutional Court in Constitutional Petition No. 3 of 2008 between Goodman Agencies LTD against the Attorney General and HASSA Agencies (K) LTD. The Applicants cannot be joined as parties to HCCS No. 719 of 1997 as they were never parties to the consent judgment and the Constitutional Court Petition which confirmed the consent judgment. Their claim is time barred and res judicata.

The Attorney Generals affidavit in reply is sworn by Gerald Batanda, State Attorney in the Attorney Generals Chambers. The affidavit confirms that the first Respondent company filed a suit against the Attorney General in High Court civil suit number 719 of 1997 Goodman Agencies Ltd and 3 others versus Attorney General. The consent judgment was executed on the 2nd day of September 2005 and is still being challenged by the second Respondent in the Supreme Court of Uganda. He avers that since the signing of the consent judgment on the 2nd of September 2005 there have been several parties claiming ownership of the suit motor vehicles. He attaches a letter addressed to the Attorney General Annexure "A" dated February 2011 originating from the alleged motor vehicle owners. He concludes that the consent was entered into without sufficient material facts and misapprehension of the general facts of the case by all parties. It refers to the application by the first Respondent for orders compelling the Treasury officer of accounts to pay the decreed sums under the consent judgment without the knowledge of the Applicants. He avers that it is just and equitable that the consent judgment entered into on 2 September 2005 be set aside and the case heard on its merits or reviewed to avoid double payment by the government to persons who are not rightly entitled to the same and to avoid a multiplicity of suits.

The managing director of the first Respondent Mr Nicholas Were filed a supplementary affidavit. He avers that the Applicants have no basis of claim under the consent judgment at all as they never executed any hire agreements with Goodman Agencies Ltd and they never filed any suit. That the consent judgment was executed with the full blessing and approval of the Solicitor General and Attorney General of Uganda after full consultations with the various government departments and a legal opinion of the Attorney General written to his Excellency the President of the Republic of Uganda. He contends that the legal opinion of the Attorney General binds the government of Uganda and the Attorney General. He further avers that the Applicants cannot be joined as parties to High Court civil suit number 719 of 1997 as the runner-up parties to the consent judgment and the constitutional petition which conform to the consent judgment and their claim is time barred and res judicata. That the facts were confirmed in the application for judicial review in miscellaneous application number 34 of 2011 and the above-mentioned application cannot arise now.

At the hearing of the application the Applicants were represented by Paul Rutisya while the Respondents were represented by Justin Semuyaba. The Attorney General was represented by Kosiya Kasibayo State Attorney.

Learned Counsel for the Applicant submitted that the Applicant is a lawful administrator of his late father's estate. His late father was the owner of the motor vehicles described in the application. The vehicles were hired to the first and second Respondents as joint hirers. The Applicant has authority to administer the estate and copies of the motor vehicle logbooks and hire agreements where annexed. When the vehicles were vandalised and or confiscated by military personnel the Respondents sued the Attorney General in High Court civil suit number 719 of 1997 to recover the value of goods and trucks. After reviewing the facts as stated in the affidavits, learned Counsel submitted that the Applicant’s case is that the first and second Respondents have acted in a manner as to deny the Applicants the interest in the property. They have passed themselves off as having the beneficial interest in the motor vehicles.

As far as the law is concerned, learned Counsel for the Applicant submitted that under section 34 of the Civil Procedure Act, matters regarding execution are dealt with by the same court executing the decree and not by a separate suit. It was better to investigate the matter already in court than to bring a separate suit. In such a case there is no time limit. Secondly under section 33 of the Judicature Act, the High Court in the exercise of its jurisdiction may grant absolutely or on such terms and conditions at it thinks just all such remedies as any of the parties to a cause of matter is entitled to in respect to any legal or equitable claim and where possible all matters in controversy between the parties should be completely and finally determined and multiplicity of legal proceedings avoided. Learned Counsel also referred to order 9 rules 12 of the Civil Procedure Rules and contended that where judgment has been entered by the registrar the court may set aside or vary the judgment upon such terms as may be just. The registrar is entitled to pass judgment in uncontested cases under order 50 rules 2 of the Civil Procedure Rules. He contended that the provision is by extension applicable to an order on consent made by a judge.

Learned Counsel relied on the case of All Sisters Company Ltd vs. Guangzhou Tiger Head HCMA No. 307 of 2011 where the grounds for setting aside a consent judgment were considered. Learned Counsel further referred to the affidavit in reply from the Attorney General's Chambers particularly paragraph 6 of the affidavit of Gerard Batanda. He submitted that the affidavit confirms that there was misapprehension of material facts or ignorance of material facts which was a ground for setting aside a consent judgment. The material facts where the identity of the owners of the motor vehicles the subject matter of the consent judgment. The fact that the Applicants are owners of the motor vehicles was not known. He contended that the second and third Respondents were hirers. Learned Counsel submitted that in the All Sisters case (supra) the parties seeking to set aside the consent were not party to the original suit and the consent was set aside.

Learned Counsel further submitted that in cases such as that of this application, the court cannot vary the consent judgment but can only set it aside. Therefore the Applicant’s application is to set aside the consent judgment on the ground that the court did not have all material facts. On the other hand section 82 of the Civil Procedure Act allows a court to review its own decision. Learned Counsel referred to the case of Attorney General and Uganda Land Commission versus James Mark Kamoga and another Civil Appeal number 8 of 2004. In the case of Ladak Hussein v s Griffiths Isingoma and Others SCCA No. 8 of 1995 a consent judgment can be set aside on the motion of third parties.

Responding to the affidavit of the general manager of Goodman Agencies that the Applicants have no interest or claim, the Applicant wants the orders stayed. Learned Counsel submitted on the doctrine of res judicata that matters must be concluded finally by a competent court before they become res judicata. It is a case for the grant of a stay of execution in HCCS 719 of 1997 and setting aside the consent judgment and to allow parties to be joined.

In reply State Attorney Kasibayo submitted that since the signing of the consent judgment, several parties have flooded the office of the Attorney General for compensation. There is a list of about 10 owners of the trucks. It shows the hurdles the Attorney General's office is going through to get to the true owners. The Applicants are included on that list. Referring to paragraph 6 of the affidavit from the Attorney General's Chambers he submitted that the consent judgment was executed without regard to some material facts. There were facts which were missing so the Attorney General would be prejudiced if the consent is not set aside and the suit heard on its merits and the owners verified so that the Attorney General does not pay double. The learned State Attorney conceded to the Applicants application to set aside the consent judgment. He prayed that the consent is set aside and the true owners verified to avoid the Attorney General paying more money.

In reply Justin Semuyaba Counsel for the first Respondent opposed the application. Firstly he contended that the application has been brought by the Applicants but only one party filed an affidavit in support of the application. As far as the deponent to the affidavits in support being the first Applicant is concerned, learned Counsel submitted that he claims to be the lawful administrator of the estate of his father but attached a certificate from the Congo, a different jurisdiction. He submitted that the Probate Resealing Act cap 160 and section 2 thereof governs the procedure on letters of administration issued by foreign courts. He submitted that if the Applicant wanted to use the letters of administration, he ought to have had them resealed otherwise it cannot be used.

Secondly the second and third Applicants have not sworn affidavits in support of the application. They cannot be entertained under order 19 rules 1 of the Civil Procedure Rules which requires facts to be proved by affidavit. A notice of motion not supported by affidavit cannot be proved. If the affidavit of the first Applicant fails on the ground of locus standi, then the notice of motion fails.

The Applicant raises a serious matter to this court. They seek to set aside a consent executed so many years ago. The cases quoted by learned Counsel for the Applicant shows that consent can be set aside and the question is what mode of application should be applied? Learned Counsel contended that for there to be review, the Applicant must have been a party to the case. He contended that a third party can only apply in a suitable case. In this case however, learned Counsel submitted that it was not a suitable case for a third party to apply for review.

He contended that the parties have not brought any new evidence that they did not have before. They came to court after seven years. They are not bringing any new evidence they did not have before. Secondly the letters of administration of the first Applicants are not proper. Thirdly the consent that the Applicant is trying to have the court revisit was considered by the Constitutional Court. Fourthly the application to set aside the consent does not cite all the parties to the consent to come to court in order to vary the consent. Learned Counsel referred to the case of Attorney General and Uganda Land Commission versus Kamoga Supreme Court Civil Appeal number 8 of 2004. In that case Justice Mulenga JSC sets out the grounds for varying a consent judgment.

Fifthly learned Counsel submitted that the consent was arrived at after accumulation of consultations with the several ministries and the Attorney General wrote a legal opinion blessing the consent. Now a State Attorney Batanda Gerard opposes the consent.

Learned Counsel further contended that the Respondents have no claims of the Applicant. He submitted that if they have any claims, they should file them separately. Learned Counsel submitted that the Constitutional Court held that Hassa Ltd which was in a similar situation like the Applicants could not worm itself into the consent because it was not a party to it. Learned Counsel further contended that the Attorney General by relying on a letter written by the first Applicant was depending on unfounded claims. He contended that this claims should be tested in a fresh suit. Furthermore the claims are barred by the law of limitation which is three years as far as the Attorney General is concerned. Once the Constitutional Court has ruled on the matter, the high court cannot revisit it.

The Attorney General cannot disown the consent. An appeal was filed by Hassa Agencies against the decision of the Constitutional Court which is attached. On the other hand the Attorney General appealed to the Supreme Court on the question of interest. The Attorney General cannot come up and disown the consent in the circumstances. In the circumstances, it is only the Supreme Court of Uganda which can set aside the consent judgment. The Applicant’s application will overturn the judgment of the Constitutional Court if it was granted.

Learned Counsel further submitted that the blessing of the Attorney General cannot be impeached on grounds other than fraud. He contended that the Attorney General cannot depart from its position which was confirmed by the Constitutional Court. In Kaingana vs. Daboubou [1986] HCB 59 when one purports to swear affidavit in a representative capacity but does not prove authority, the affidavit is defective.

As far as section 34 of the Civil Procedure Act is concerned, learned Counsel contended that the provision is only available to parties to the suit. He prayed that the application is dismissed with costs.

The learned state attorney in short reply submitted that the learned justices of the court of appeal were looking at the issue of the procedure to add a party. This is different from what we are handling here and this ruling is not binding on this court.

In rejoinder learned Counsel for the Applicants reiterated his earlier submissions. As far as the Probate Resealing Act is concerned, the short title is instructive and shows that it deals with probate in Commonwealth countries. The Congo is not a Commonwealth country. There can be no resealing in that jurisdiction. Secondly it is limited to probate and letters of administration. The Applicant attached a certificate that he is the heir and not letters of administration or probate. There is no probate or letters of administration. Consequently learned Counsel contended that the Applicants, particularly the first Applicant is in court properly. Secondly he states the capacity in which he swears the affidavit in support of the application. He is not representing anybody else. There was no need to have a multiplicity of affidavits on the record.

As far as the issues of parties not being before the court is concerned, learned Counsel contended that the case of Ladak Hussein (supra) provides that a person considering himself aggrieved can come to court. The Applicant is a person considering himself aggrieved.

On the submission as to whether there was any misapprehension of facts; learned Counsel contended that the Attorney General has confirmed that at the time of the consent he did not have all facts. As far as time bar is concerned, there is no timeframe for the filing of this application. The earlier consent was executed between Goodman Agencies and Hassa Agencies for and on behalf of all the Applicants. For Goodman Agencies to take money belonging to the Applicants would be an injustice.

As far as the Constitutional Court ruling is concerned, learned Counsel submitted that the issues in that case were different. It was whether Hassa Agencies could be added as a party after the consent agreement. Consequently to grant the application would not overturn the decision of the Constitutional Court.

As far as the Attorney General of Uganda as an office is concerned, where the Attorney General pronounced itself, that is the position that should be respected. The Attorney General has come to say that they have no problem with setting aside the consent.

Ruling

I have carefully listened to the submissions of learned Counsels for both parties. I have also perused the pleadings namely the notice of motion and the affidavits in support and opposition to the application. I was also referred to numerous authorities in support of the arguments which have been set out above.

The Respondents Counsel Justin Semuyaba attacked the Applicant’s application on the ground that the Applicant lacked locus standi. He contended that the Applicants had letters of administration from the Congo but it had not been resealed under the Probate (Resealing) Act cap 160. He relied on section 2 of the said Act which provides as follows:

"Where a court of probate in any part of the commonwealth in any foreign country, or a British court in a foreign country, has either before or after the passing of this Act granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, on been produced to, and a copy deposited with, the High Court, be sealed with the seal of that court, and thereupon shall be of the like force and effect, and have the same operation in Uganda as if granted by that court."

Learned Counsel for the Applicant contended that the above provision only applies to probate or letters of administration granted by a Court of Probate in any part of the Commonwealth. That the Congo was not part of the Commonwealth and the Act was inapplicable. Secondly the authority which the Applicant attached was neither probate nor letters of administration. It was a certificate showing that the Applicant was the heir of the late John Muzerwa the lawful owner of motor vehicles registration number KN6511M and trailer KV3708B. There is no specific provision under the law which caters for such a document. The certificate shows that the Applicant was given permission by a Mayor of a district in the Republic of Zaire Bukavu Province to follow up the property of his late father. It is entitled "The legitimate Heir Certificate". It is issued by the Mayor of IDJWI – SUD DISTRICT. The document is certified. The authenticity of this document and its admissibility in the High Court of Uganda as giving authority to sue on behalf of an estate is questionable. Order 3 of the Civil Procedure Rules caters for recognised agents and advocates. But this document does not fall within the parameters of that order. In effect, the Applicant is acting as the heir or owner. Though the document is certified by the First Secretary, the official seal is not very clear. I will however give the Applicant the benefit of doubt as the only ground on which the Respondents Counsel attacked the document is not tenable in law. This is because the document does not emanate from a Commonwealth country. For purposes of this application the document was duly endorsed by an official of the Congolese Government and will be presumed to be authentic. This is under section 86 of the Evidence Act:

"86. Presumption as to certified copies of foreign judicial records

The court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of the Commonwealth is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of any government of the Commonwealth in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records."

The first matter that ought to be determined in the application is whether there is any decision in this matter affecting the consent judgment executed in High Court civil suit number 719 of 1997 between Goodman Agencies Ltd and another against the Attorney General as Defendant. This is because the consent judgment has been the subject of previous litigation in the Constitutional Court and on appeal to the Supreme Court. The consent judgment sought to be impeached reads as follows:

"By Consent of both parties, let judgment be entered for the Plaintiffs in the following terms:

  1. The Defendant do pay to the Plaintiff a sum of Uganda shillings 1, 320,172,842/= being the replacement cost/value of 10 trucks.

 

  1. The Defendant do pay the Plaintiffs a sum of Uganda shillings 12,865,375,000/= being loss of earnings.

 

  1. The Defendant pays the Plaintiffs Uganda shillings 300,000,000/= being costs of the suit.”

The consent judgment is dated 2 September 2005 and is signed on behalf of the first Plaintiff. Secondly it is signed on behalf of the 3rd, 4th and 5th Plaintiffs. Lastly it is executed by the Solicitor General Counsel for the Defendant. It was also endorsed by the Judge. First of all there is a serious problem with the way the consent judgment was entitled in that it did not cite the other Plaintiffs other than the first Respondent in this application, Goodman Agencies Limited. The citation of the full parties has to be gleaned from the court record upon perusal of the plaint in High Court civil suit number 719 of 1997. Citing the proper parties is crucial in execution proceedings. It is also necessary for every authority involved in the process of execution to know who the actual plaintiffs are. For purposes of this ruling, the Constitutional petition was filed in the Constitutional Court in Constitutional Petition number 3 of 2008 with Goodman Agencies Limited as petitioner and Attorney General and Hassa Agencies (K) Ltd which had been added to the consent judgment by the High Court as Respondents. Among other complaints, the petitioners plead in the petition as follows:

“(d)     That the learned trial judge grafted on board Hassa Agencies Ltd and others as co-Plaintiffs and thereafter they became court judgment creditors in the suit that had been concluded before they had been joined as parties to the suit or the consent judgment aforesaid as entitling the strangers to the suit to the fruits of the judgment an act inconsistent with article 28 (1) because it is abominable to a fair hearing and inconsistent with article 26 because your petitioner is thereby robbed of part of their entitlement under the said judgment that has to be paid to the said strangers to the suit.

(e)       That the learned trial judge on his own and alone signed a decree drawn by a stranger to the suit that is wholly at variance with the consent judgment aforesaid without reference to your petitioner and his Counsel an act inconsistent with article 28 (1) because your petitioner has thereby been robbed of a fair hearing on critical matter central in the execution of any judgment."

The Constitutional Court extensively reviewed the facts of High Court civil suit number 719 of 1997. They noted that the claim of Goodman Agencies Ltd in the High Court was premised on clause 3 of the hire agreement dated 21stof November 1995 which provides:

"(Goodman) shall have the legal possession of the said motor vehicles (s) at all times as long as this (these) agreements are in force, with powers to hire the same to third parties appertaining to the said motor vehicles on behalf of the owners."

They note that Goodman was the sole hirer and the only one who signed the agreement. The suit against the Attorney General by Hassa Agencies Ltd was dismissed. On 2 September 2005 Goodman agencies Ltd with the other Plaintiffs executed a consent judgment with the Attorney General for the payment of Uganda shillings 14,485,547,842/=. The consent was duly endorsed by the Solicitor General. On 12 September 2005, Hassa Agencies Limited applied to be added as a party to the consent judgment. The court added Hassa Agencies Ltd on 14 November 2005. A constitutional petition was filed to challenge the High Court's decision to add Hassa Agencies limited as a party to the consent judgment. The court ruled inter alia that the act of adding Hassa Agencies Ltd amounted to deprivation of property contrary to article 26 of the Constitution of the Republic of Uganda.

The court noted that the consent judgment stated that the Attorney General accepted liability and it was also comprehensive. The High Court was well aware of the existence of Hassa Agencies Ltd and the possible claim of the 10 trucks when the court accepted the consent judgment. By accepting the consent judgment the court confirmed that this settlement was fair and acceptable without Hassa Agencies as a party. The court also found that the judge was functus officio by the time he added Hassa agencies Ltd to the consent judgment. They noted that the consent judgment came with the blessing of the Attorney General whose legal opinion is generally binding on Government and all Public Institutions. The court went ahead to grant the following orders of redress:

"…

  1. That all the proceedings conducted by the learned trial judge from 2 September 2005 to the date hereof be and are hereby expunged from the court record.
  2. That the petitioner is at liberty to undertake execution process in respect of the consent judgment of the 2 September 2005 in High Court civil suit number 719 of 1997 the subject of this petition with interest at the rate of 24% per annum from the date of that judgment till payment in full.
  3. The petitioner is paid the costs of this petition and a certificate for two Counsels is hereby granted."

In this application, the Applicants seek for orders of stay of execution; for orders that the consent judgment reviewed above be set aside and for orders that the Applicants be joined as parties to the civil suit. Alternatively they seek for orders that execution of the consent judgment in High Court civil suit number 719 of 1997 be stayed, a consent judgment stated above in High Court civil suit number 719 of 1997 is reviewed and for costs of the application.

The foundation of the claim is that the Applicants are motor vehicle owners with other motor vehicle owners who allegedly hired out motor vehicles to the first and second Respondents. The second Respondent to the application is Hassa Agencies Ltd. The third Respondent is the Attorney General of Uganda. Among other grounds, the Applicants state that the agreement signed between the vehicle owners and the first and second Respondents allowed the first and second Respondents to enforce any legal rights arising under the said agreements for and on behalf of the vehicle owners. That the vehicles were confiscated while in the custody of the first and second Respondents who were joint hirers. They maintain that the Applicants and other vehicle owners were not party to the suit. That the first and second Respondents have acted in a manner as to deny the Applicant together with other vehicle owners the right to a portion of the judgment, the value of the motor vehicles.

Clause 3 of the agreement annexure "C" being an agreement between John Muzerwa and the first and second Respondents indicate that the owner is the legal owner of motor vehicle KN 6511M Trailer No. KV3708B. The first and second Respondents were termed "joint hirers". The agreement was executed on the 10thday of November 1995. Clause 3 reads as follows:

"The hirers shall have the legal possession of the said motor vehicle and its trailer at all times as long as this agreement is in force with power to hire the same to third parties and enforce all legal rights appertaining to the said motor vehicle and trailer for and on behalf of the owner."

This clause shows that the first and second Respondents were agents of the vehicle owners and had authority to file an action and pursue all legal rights concerning the vehicles. This includes the right to file an action to recover the vehicle or its value on behalf of the owner in the circumstances where their vehicles were confiscated.

The Applicants filed an omnibus application in which they seek a stay of execution of the consent judgment as well as to set aside the consent judgment or in the alternative to review the consent judgment all in the same application.

Grounds for setting aside consent judgments are well laid out in my ruling referred to by both parties in miscellaneous application number 34 of 2011 between Goodman Agencies Ltd against the Attorney General and the Treasury Officer of Accounts. My ruling on the judicial precedents is at pages 9 and 10 of that decision delivered on 14 June 2011 where I stated as follows:

“As far as judicial precedents are concerned, I would refer to the case of Brooke Bond  (T) Ltd vs. Mallya [1975] E.A 266, where Law Ag P agreed with the principles quoted at page 269 of the judgment that “a consent judgment made in the presence of and with the 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 fraud or collusion,” or by an agreement contrary to the policy of court or where the consent was given without sufficient material facts, or in misapprehension or ignorance of material facts, or in general for any reason which would enable court to set aside an agreement between the parties. (Emphasis mine)

 

A consent judgment may be set aside on any grounds that would invalidate an agreement or contract between parties to the contract. In Mohamed Allibhai –vs. W. E Bukenya Mukasa, Departed Asians Property Custodian Board S.C.C.A 56 of 1996, the parties filed a written consent settling the suit by agreement and on appeal from an order made in an application filed to set aside the agreement the Supreme Court of Uganda held that a Consent Judgment may be set aside on any ground that would invalidate an agreement/contract between the parties or enable Court to set it aside and secondly for fraud, collusion or as being contrary to public policy. The same doctrine is found in the case of Hassanali vs. City Motor Accessories Ltd and Others [1972] EA 423. In this case, the Court of Appeal at Nairobi held that it could not interfere with a Consent Judgment except in circumstances that would provide a good ground for varying or rescinding a contract between the parties.

Judicial precedence also shows that an application to set aside a consent judgment should ordinarily be challenged in the suit itself by way of an application for review to set it aside. The reason for this is obvious. A consent judgment is not appealable and therefore can only be set aside or varied in the suit itself. The provision that a consent judgment is conclusive is cemented by section 67 (2) of the Civil Procedure Act which bars an appeal from a consent decree. Section 67 (2) of the Civil Procedure Act provides:

 

“67. Appeal from ex parte decree, etc.

(2) No appeal shall lie from a decree passed by the court with the consent of parties.” …”

In this particular application, the Applicants contend that the Attorney General and the parties were labouring under misapprehension of facts. The Attorney General conceded to the application to set aside the consent judgment. As can be read from the above ruling I had already determined and held that the Attorney General is bound by the consent agreement. Secondly, the Constitutional Court upheld the consent judgment and held that the first Respondent was at liberty to enforce the consent judgment. Thirdly, and admittedly so, the Attorney General only appealed the award of interest at 24% per annum from the Constitutional Court to the Supreme Court. The Attorney General cannot use a circuitous route to circumvent the orders of the Constitutional Court in which they unequivocally held that the first Respondent was at liberty to undertake execution process in respect of the consent judgment of 2 September 2005 in High Court civil suit number 719 of 1997 the subject of the petition with interest at the rate of 24% per annum from the date of that judgment till payment in full. It is my holding that the Attorney General is out of order to concede to the Applicant’s application. It is not only circuitous but also unlawful while an appeal is pending in the Supreme Court on the question of interest only for the Attorney General to find another route to attack the consent judgment albeit indirectly by conceding to the same. The AG would thereby be winning the appeal without having to appeal to the Supreme Court from the judgment of the Constitutional Court. In other words, once the consent judgment is set aside, there would be no need to argue the appeal on the question of interest since the interest only arises from the consent judgment. To stretch the argument a little further, the appeal in the Supreme Court would be rendered nugatory. What is pending in the Supreme Court is an appeal the foundation of which is the consent judgment. As far as the Attorney General is concerned, the issue that should be addressed is how to enforce the judgment of the Constitutional Court and not how to circumvent it.

Secondly, I have critically examined the Applicant’s application. Their grievance is about the conduct of the first Respondent. They are alleging dishonesty on the part of the first Respondent. They are not complaining about the consent judgment per se. In other words, the misapprehension or facts that may form the basis for setting aside a consent judgment must relate to the state of mind of the parties to the consent judgment by which state of mind informed by the facts before them they were misguided into executing the consent judgment. In this particular case, the liability of the Attorney General has not been disputed. The Applicants are not contending that the award under the consent judgment was prejudicial in that it was manifestly low or that their interests are prejudicially affected by the consent judgment. Misapprehension of facts must relate to the entering of a consent judgment on the merits and not on matters that arise in the execution of the consent judgment. The complaints of the Applicants relates to the manner in which their alleged agents, the first Respondent as far as the consent judgment is concerned is behaving as if it is the owner of the motor vehicles in question. This may well be a genuine concern. It is however not indicated anywhere in the application or in the consent judgment or indeed in the judgment of the Constitutional Court that the Respondent namely the first Respondent Goodman Agencies Ltd held himself out as the owner of the vehicles in question. I am however mindful of the fact that in this application the first Respondent denies the interest of the Applicants. I will however deal with this issue at a later stage.

I think that the whole question arising from the consent judgment is more complex in that the consent judgment covers a comprehensive package. It deals with both compensation for loss of vehicles and loss of earnings. In their review of the Attorney General's opinion prior to the execution of the consent judgment the Constitutional Court noted that there were extensive consultations prior to execution of the consent judgment. Secondly it covered the replacement cost/value of 10 trucks. It also covers loss of business. The affidavit of Gerard Batanda attaches the consent judgment. The sum of Uganda shillings 1,320,172,842/= is the replacement cost/value of 10 trucks. Secondly, the Defendant is to pay the Plaintiffs a sum of Uganda shillings 12,865,375,000/= as loss of earnings. The vehicles were allegedly hired out to the first and second Respondents. In other words, the owners of the vehicles theoretically would be entitled to some compensation for loss of earnings arising from the hire of their vehicles. How much would this be is a question of fact or a factor to be applied in assessing how much each truck owner would have earned out of the compensation in addition to the replacement value of the trucks.

What emerges is a duty that is placed on the judgment creditor who is a representative of other persons who hired to them vehicles that were compensated for under the consent judgment. Under clause 3 of the hire agreements which were also referred to by the Constitutional Court, the first Respondent is an agent of certain motor vehicle owners. It seems there is no dispute as to the identity and the registration of the 10 trucks that formed the basis of the consent judgment. Ownership to these trucks can be proved subsequent to the judgment as a question of fact. The locus standi of the first respondent to represent whoever may be an owner of the vehicle has never been in dispute.

It cannot also be held that the consent judgment was obtained through collusion or fraud. The basis of the consent judgments is not in issue. What seems to emerge from the Attorney General's submission is that there are certain interested parties who claim to be owners of some of the trucks. The Applicants also claim to be owners and have attached relevant documents.

The hire agreements alluded to by the Constitutional Court and also attached as annexure "C" to the affidavit in support of the current application clause 3 thereof gives rise to a principal/agent relationship enforceable where there is a breach of duty or right in that relationship. The Applicants are alleging breach of trust in a principal/agent relationship. This may give rise to a separate cause of action that arises from the alleged breach. It would be unnecessary to set aside the consent judgment on the basis of the alleged breach of trust since all the money awarded under the contract is still intact and unpaid. It would also be unnecessary to hear the suit afresh since the Attorney General by signing the consent judgment admitted liability. The question of the Attorney General's liability was confirmed by the Constitutional Court. The question of apportionment of the award under the consent judgment only arises in the principal/agent relationship and the contracts which formed the basis of the hire of motor vehicles to the Respondents. Last but not least, the Applicants do not deny that the Respondents other than the Attorney General had authority to file an action in any court of law such as in High Court civil suit number 719 of 1997 own behalf of the motor vehicle owners. It may also be immaterial that some persons who are now claiming an interest in the award were undisclosed principals of the first Respondent. Such questions can be the subject of proof in a court of law.

In conclusion, the Applicants have not established any ground for setting aside the consent judgments. It would also be unjust at this stage to set aside the consent judgment because:

  1. Setting aside the consent judgment would render proceedings on appeal in the Supreme Court nugatory without having heard all the parties to the appeal in the Supreme Court.
  2. One of the parties in the Supreme Court is still interested in the consent judgment in terms of whether it should be added on as a party thereto.
  3. The first Respondent has applied to this court for orders compelling the Treasury Officer of Accounts to pay out these monies.
  4. No money has been paid out and it cannot be said that anybody has been prejudiced by the consent judgment itself.
  5. The allegation that the first Respondent is behaving as if it is the owner of the motor vehicles which had been compensated is not based on appropriation of any proprietary rights of anybody who claims to be interested in the sums awarded under the consent judgment. Such an allegation is speculative and premature.
  6. The Attorney General is still handling the complaints that have emerged pursuant to the consent judgment.
  7. Setting aside the consent judgment will not achieve the objective of compensation or participation in the benefits of the consent judgment by any party claiming to be aggrieved by not been directly involved in pursuing the claims.
  8. The question of whether the first Respondent is denying the truck owners is a question of accountability in the principal/agent relationship. There are alternative remedies to enforce rights and obligations under a principal/agent relationship.
  9. The consent judgment can form the basis of a new suit to enforce the principal/agency relationship as against the agent who allegedly wants to appropriate the money under the consent judgment.
  10. It must also be noted that the Respondents also claim an interest in the award in their own right. Such rights beg for ascertainment and not extinguishing of the basis of the claims of all interested persons.

In the premises, there is no need for me to consider whether the consent judgment should be reviewed since a consent judgment is an agreement and can only be reviewed by parties who are privy to it. In the premises, the Applicant’s application stands dismissed. The application for setting aside the consent judgment having been dismissed, it follows that the application for stay of execution cannot be granted and is also dismissed.

 I have carefully considered the interest advanced by the Applicants and I must note that it would be inappropriate at this stage to order costs against them. They came to court under the mistaken belief that their interest would be taken care of if they made an application to set aside the consent judgment. They are not precluded from seeking other remedies as indicated above. In the premises, each party will bear its own costs.

Ruling delivered in open court this 25th day of May 2012

 

Hon. Mr. Justice Christopher Madrama

Ruling delivered in the presence of:

James Okuku appearing with Justin Semuyaba for the first Respondent

Nshemereirwe Peruth State Attorney holding brief for Kosia Kasibayo for Attorney General

Paul Rutisya for the Applicants

 

Hon. Mr. Justice Christopher Madrama

25th May 2012