Court name
Commercial Court of Uganda
Case number
Miscellaneous Application-2013/235
Judgment date
5 July 2013

Nakulima v Nandawula (Miscellaneous Application-2013/235) [2013] UGCommC 128 (05 July 2013);

Cite this case
[2013] UGCommC 128

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA

 AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 235 OF 2013

ARISING FROM CIVIL SUIT NO 277 OF 2012

ESTHER NAKULIMA}................................................................... APPLICANT

VERSUS

ANN NANDAWULA KABALI}.................................................. RESPONDENT

 

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant commenced this application under section 33 of the Judicature Act, sections 34 and 98 of the Civil Procedure Act and the enabling rules of the Civil Procedure Rules for an order that the consent judgement and decree in civil suit number 277 of 2012 be varied and set aside. The applicant also seeks for an order that costs of the application are provided for.

The grounds of the application are that at the time of signing the consent, the applicant was under duress as her goods had been attached and she was threatened with arrest. That undue influence was exerted upon the applicant compelling her to sign the consent order. There was collusion between the applicant’s lawyers and the respondent and or her lawyers to ensure that the applicant signed the consent. Fourthly the applicant is not aware of how the amount that is signed in the consent arose. The interest charged by the respondent was unconscionable and exorbitantly high. The amount alleged by the respondent was inflated and did not reflect the amount that was agreed upon by the parties. Lastly that it is in the interest of justice that the application is allowed. The application is supported by the affidavit of the applicant wherein she deposes as follows. The applicant and the respondent had made a financing agreement for shillings 168,000,000/= to import of goods, by the respondent or that the agreement to read Uganda shillings 600,000,000/= and for the amount payable to be Uganda shillings 691,040,000/=. The actual amount borrowed was Uganda shillings 150,000,000/= and the amount payable to the respondent would be Uganda shillings 168,000,000/= and interest rate of 4% per month for three months. Due to delays in payment the respondent filed a suit against the applicant and an ex parte judgment was entered for the amount she was not aware of. A consent judgement was executed by the parties on 31 October 2012 in which she undertook to pay the plaintiff a sum of Uganda shillings 447,705,220/=. The respondent subsequently obtained an order to attach the applicant's goods after the ex parte judgment had been entered against her. At the time of signing the consent judgment, the respondent to its auctioneers and attached the applicant stock of goods said to be Uganda shillings 100,000,000/= and blocked account number 10322000321113 in Equity Bank. The respondent then informed the applicant that first of goods were be released to allow have continued with her business if she signed the consent judgement, her stock of goods would be released the permit to continue with her business whereupon they signed the consent judgement. Subsequently the applicant was arrested and detained at Kajansi police station for one night whereupon she was informed by a lawyer that the respondent would continue arresting her. When she executed the consent judgement, it was the only way of settling this suit because if she did not signed then, she was informed by her counsel that she will end up paying Uganda shillings 900,000,000/= or be imprisoned. They initially refused to sign the proposed consent agreement for over a month by the lawyer kept on calling day and night demanding that the signs and have the matter settled. Due to impending threat of imprisonment and the threat of being Uganda shillings 900,000,000/= coupled with the offer to release her stock of goods, she signed the agreement. After signing the consent, the respondent did not return all the goods which had been no purchase and did not offset the goods that were not returned. Consequently the applicant avers that her lawyer particularly colluded with the respondent, her lawyers and the auctioneers in tracking her to sign the consent. He asserts that had the case being handled on the merits, she will not have been made to pay the claim and interest at the amount of Uganda shillings 631,220,000/=. The decreed amount of Uganda shillings 447,705,220/= is exaggerated and inflated as the applicant had been making payments to the respondent.

In reply the respondent deposed to an affidavit in which she denies the assertions of the applicant. Firstly she contends that the financing agreement which was the subject matter of this suit was actually Uganda shillings 691,020,000/= and not 168,000,000/= as falsely alleged by the applicant. He attaches the financing agreement as annexure "A" showing that the agreement was that the applicant would pay back Uganda shillings 691,040,000/= after the financier lent the applicant Uganda shillings 600,000,000/=. Secondly at the time of filing the main suit, the applicant had paid out Uganda shillings 60,800,000/= leaving a balance of Uganda shillings 630,240,000/= which is what she claimed in HCCS number 277 of 2012.

The consent was executed after advice from the court for the parties to try pursuing an amicable settlement. Subsequently the consent was signed on the 21st day of October 2012 without any duress or coercion as alleged by the applicant. In the course of negotiations the applicant admitted the debt owed but requested the respondent to waive interest amounting to Uganda shillings 182,534,780/=. In the spirit of settlement, the respondent waived the said amount living a sum of Uganda shillings 447,705,220/= which was the principal amount of money lent to the applicant.

As far as the interim order of the court is concerned, it was lawfully obtained and permissible because the applicant was busy disposing of her known assets and the court attached the goods bought using the money she lent to the applicant. As far as the arrest of the applicant is concerned, the respondent asserts that she was reliably informed by the court bailiff one Moses Mureefu that the applicant was formed sneaking the goods the subject matter of attachment by disguising them as building materials in a Tipper Truck that was moving to an unknown destination. The allegation of collusion by the applicant was a falsehood intended to defeat the legitimate interest of the respondent against the applicant. Furthermore she avers that it is not true that she did not return the goods that were attached by the bailiff since the stock was jointly taken by the respondent, the bailiff and the applicant. The applicant paid the costs of the bailiff and never complained. The respondent avers that negotiations were carried out within a period of one week and she was always president during the amicable negotiations. The applicant's lawyers exhaustively explained to the applicant the legal implications of the consent and she willingly appended her signature in full view of all parties present including her husband. The respondent further avers that the applicant be leading bringing her application on the alleged grounds when she actually satisfied her obligations according to the decretal sum of the consent to the tune of Uganda shillings 89,000,000/= and the bailiffs costs amounting to Uganda shillings 10,000,000/=. Consequently she asserts that the application was brought in bad faith to disable the respondent from recovering any money from the applicant. Secondly on the advice of her lawyers, she avers that the applicant’s application does not satisfy the grounds for granting it under the law.

In rejoinder the applicant filed an affidavit in which she avers and regulates her assertion that at the time of signing the consent, she was under enormous pressure and financial distress as all her trading stock had been attached by a bailiff, instructed by the respondent's lawyers. Her stock in trade was released on condition that she first signs the consent. When the goods were returned, a good number of clothing had not been returned or badly kept and became defective thereby less attractive to customers. The defect in the clothing had a serious negative effect on the business earnings and cash flow of the applicant. It was the court bailiff who attached the goods on orders of the respondent who introduced her former attorneys Messieurs KMT advocates. Consequently KMT advocates did not protect her.

Counsels for the parties filed written submissions. At the hearing of the application counsel Sam Kabanda represented the applicant while Counsel Joseph Anguria, represented the respondent.

The issues submitted upon were:

  1. Whether the said consent judgement was procured through duress and collusion?
  2. Whether the said consent judgement qualifies to be set aside and or varied?
  3. What are the remedies available to the parties?

Whether the consent judgement was procured through duress and collusion?

The applicants counsel submitted that the applicant relies on the affidavit in support of the application. The consent judgement was defined in the case of Attorney General and another versus James Mark Kamoga Supreme Court Civil Appeal number 08 of 2004 were honourable justice Mulenga JSC held that a consent judgement consent judgments are treated as fresh agreements and may not be interfered with except on limited grounds. These are the grounds of fraud, collusion, duress or an agreement contrary to the policy of the court.

Counsel relied on the ground of duress in that the applicant’s residence was raided at night by the police whereupon she was arrested and taken to a police station. The following day she was released from police without being charged of any offence and set free for purposes of witnessing attachment of the goods/stock on 12 October 2012. Secondly the respondents blocked the applicants account number 10322000321113 in Equity Bank pursuant to an interim order granted by the Registrar of the Commercial Court Division. The applicant was subsequently informed through her lawyer Mr Julius Turinawe of KMT advocates that the applicant's goods would be released to her to allow her business continue if she signed the consent. The applicant trusted her lawyer who persistently told her that entering a consent judgment was the only way of settling the suit or end up paying Uganda shillings 900,000,000/= or be imprisoned. She initially refused to sign a proposed consent judgement given to her by her own lawyer who kept on calling her day and night demanding that she signs the agreement. Upon signing the agreement the respondent never returned all the goods are attached when the applicant was required to sign for all the items taken. The items taken well worth Uganda shillings 1,000,000,000/= and what was returned was worth about Uganda shillings 150,000,000/=.

Counsel relied on the definition of duress in Black's Law Dictionary 17th edition which defines it inter alia to include the physical confinement of a person or the detention of the contracting party's property. Broadly to the threat of confinement, or detention and the threat of harm, used compelled a person to do something against his or her wheel or judgment. The general rule is that in the wrongful act of threat which overcomes the free will of a party constitutes duress.

Counsel further relied on the case of SOBETRA Uganda Ltd and another versus Leeds Insurance Ltd HCCS miscellaneous application number 0 454 of 2011 where it was contended that the applicant executed a consent judgement under duress because he was under arrest in execution of an ex parte decree in civil suit number 69 of 2011. The applicant had three options namely; to go to civil prison, pay the money or sign the consent judgement and be released.

As far as the facts of the applicant's case are concerned, counsel for the applicant contended that the applicant had been wrongfully arrested on 11th of October 2012 to enable smooth attachment of the goods at her home, although she was released the following day. Consequently the threat for her to pay the colossal sum of money namely Uganda shillings and 900,000,000/=, coupled with a threat to be imprisoned compelled her to sign the consent judgement against her will. In those circumstances, the consent judgement ought to be set aside because it was procured under duress.

Secondly counsel submitted that there was collusion between the applicant's lawyers and the respondent's bailiffs. The bailiffs are the people who introduced the applicant to her lawyers namely KMT advocates. This explains way the applicants lawyers persuaded her to sign the consent agreement in a bid to release the applicant goods and the constant threats of imprisonment, the applicants lawyers acted in collusion with the respondent to have the applicant sign the consent judgement. Counsel further noted that under paragraph 3 of the consent judgement, the applicant was obliged to pay both lawyers a sum of Uganda shillings 20,000,000/= within the month of November 2012. Counsel further submitted that during that time the applicants counsel was in need of medical operation and had travelled to Turkey and it was probable that he struggled to convince the applicant against her will to sign the consent judgement and pay. These facts show collusion between the counsels for the parties. Lastly counsel submitted that there was a point of law which substantially and legally warrant the consent judgement to be set aside. This would be under Order 6 rule 28 of the Civil Procedure Rules.

On this ground counsel submitted that the respondents suit civil suit number 277 of 2012 from which the consent judgement arose emanated from order 36 which is a special order catering for specific kinds of suits. Particularly the procedure is applicable where the plaintiff seeks only to recover a debt liquidated demand money payable by the defendant, with or without interest. Counsel submitted that the suit was brought to recover a liquidated demand of Uganda shillings 631,240,000/= with interests and costs of the suit. However, there are no facts constituting the cause of action showing that the applicant obtained the liquidated monies from the respondent. The respondent give an ambiguous story which does not indicated that there was a liquidated sum of money as claimed. The suit was therefore filed brought under the wrong procedure. Order 36 does not entertain ambiguity and contentious issues but certainly it does not entertain un liquidated sums. It is evident from the pleadings that the suit is bad in law. The consent judgement was therefore procured on the backbone of a non-existent suit or wrongfully and badly brought suit in the eyes of the law. Finally counsel relied on the case of Makula International versus Cardinal Nsubuga and another [1981] HCB at page 11 for the proposition that an illegality once brought to the attention of court cannot be ignored and it overrides all questions of pleadings.

In reply, the respondents counsel submitted that they were in agreement with the definition of the consent judgement as defined in the case of Attorney General and another versus James Mark Kamoga (supra). Counsel referred to photos taken showing the parties embracing and celebrating after signing the consent judgement. Consequently the allegation that the applicant was not aware or did not consent to the consent judgement was false. Counsel further submitted that in miscellaneous application number 432 of 2012 submitted to court by the defendants/applicants counsel Mrs KMT advocates on 24th of July 2012, the applicant avers in her affidavit that she received Uganda shillings 670,000,000/= and repaid Uganda shillings 801,661,400/= she omitted to acknowledge the full amount advanced to her to the tune of Uganda shillings 1.133 billion which attracted an interest rate of 275,000,000/= within a period of three years and out of which she repaid Uganda shillings 778,000,000/= leaving an outstanding balance of Uganda shillings 630,000,000/= an amount which was duly audited by a certified auditor on the record. In the instant application the applicant shifts a position and alleges in paragraph 2 of the affidavit in support of the application that she borrowed Uganda shillings 150,000,000/= for three months at an interest rate of 4% per month. On the allegation that the financing agreement was the creation of the respondent, annexure "A" is the agreement in which the applicant acknowledged. It has an amount of Uganda shillings 691,040,000/=. In paragraph 6 of the applicants affidavit in support, she avers that the goods are attached well worth Uganda shillings 100,000,000/= but at page 5 of the applicants submissions, it is argued that the goods attached well worth Uganda shillings 1,000,000,000/= and the goods that were returned were only worth Uganda shillings 150,000,000/=. An inventory was taken by all the concerned parties and after one month of the consent signing and lease of the goods the applicant paid the bailiffs costs of Uganda shillings 10,000,000/=. The sum total of the review of facts by the respondents counsel is that the applicant is telling lies to the honourable court. Consequently prays that the applicant’s affidavit should be rejected by the court as deliberate lies and inconsistencies which amount to relying on oath.

On the grounds for setting aside a consent judgement on the ground of duress, the respondents counsel agrees with the definition of duress. In SOBETRA Uganda Ltd and another versus Leeds Insurance Ltd, the circumstances of the case are distinguishable from those of the applicant. During this signing of the consent that the applicant seeks to set aside, there was no warrant to commit had to civil prison and neither was there an immediate demand to pay the decretal sum. The respondent avers that the applicant willingly signed the consent and was given 14 months to pay the principal sum minus interest/profit. The alleged address by the police is far-fetched matter as there was no imminent arrest at the time of signing the consent judgement. The argument that the applicant was threatened to pay Uganda shillings 900,000,000/= or go to civil prison is devoid of any evidence. The applicants counsel acting on instructions and all negotiations were in the presence of the applicant and her husband.

As far as collusion is concerned black's law dictionary revised fourth edition at page 331 defines it as an agreement between two or more persons to before the person of his rights by the forms of law or to obtain an object forbidden by law. It implies the existence of some fraud or some lawful means for the accomplishment of an unlawful purpose. The submissions of the applicants counsel are from the bar without any evidence that the lawyers shared 20,000,000/=. Counsel Julius never consented because in the money for medical treatment. The submissions of the applicants counsel amount of professional misconduct unless he is able to substantiate it with evidence.

On the submission that order 36 of the Civil Procedure Rules is a special order, the respondent's counsels agree. Under order 36 rules 3, of the Civil Procedure Rules, the applicant is barred from defending the summary suit without first obtaining the leave of court to do so. In any case the applicants counsel seems not to have addressed himself to annexure "A" to the plaint which is the agreement signed by the applicant and the respondent and the basis of the respondents liquidated demand. Consequently there is no illegality whatsoever as alleged by the applicants counsel. Where a compromise is recorded, the decree passed is a new contract and no grounds have been advanced to set aside the agreement of the parties.

In rejoinder, the applicants counsel denied that the applicant’s pictures taken when there were embracing with the respondent show the consent of the parties.

The applicant further denies any false statements and stands by her averment that in September 2011 she borrowed 150,000,000/= payable in three months with interest at 4% per month which interest amounts to Uganda shillings 168,000,000/= the applicant does not deny owing the respondent some money. Paragraph 6 of the applicants affidavit does not aver that the goods attached are worth Uganda shillings 100,000,000/= but states that the goods were valued at over Uganda shillings 100,000,000/=.

The inventory of the property filed on court record shows that it was worth over 1,000,000,000/= Uganda shillings and less goods were returned to the applicant. Counsel further submitted/reiterated submissions that the applicants own counsel put pressure on her to yield to the consent document. Counsel further agreed that there was no warrant committed the applicant to civil prison but there were a number of threatening acts towards the applicant before signing of the consent agreement which made her signed the document against her will. Counsel reiterated the definition of duress quoted from Black's Law Dictionary 17th edition. Counsel submitted that the respondent had attached the applicant’s goods in the interim before signing of the consent agreement. He contended that the interim attachment of the goods was done purposely to force her into signing of the consent agreement against her will. This was because the applicant shop was locked up and she was out of business, psychologically tortured and mentally abused facing threats of being imprisonment again. She was also threatened with being forced to pay Uganda shillings 900,000,000/=. There was therefore duress and collusion before the signing of the consent agreement.

Counsel reiterated submissions that order 36 of the Civil Procedure Rules is a special order dealing with none contentious matters. The applicants counsel filed an application for unconditional leave to appear and defend the suit. The application was heard and perhaps ruling was not delivered. The application was illegally brought against the applicant and did not disclose a cause of action against the applicant.

Ruling

I have carefully considered the grounds in the application advanced for setting aside the consent judgement executed by the parties. I have also considered the evidence in support of the grounds and the submissions of both counsels.

The consent judgement is dated 31st of October 2012 and endorsed by all the parties including their counsels. It is also endorsed by the bailiff Mr Mureefu Moses. It was agreed that the defendant/applicant to this application would pay the plaintiff a sum of Uganda shillings 447,705,220/= being the principal amount advanced to the defendant in the year 2011. The amount was to be paid in 14 instalments. A schedule of payments was incorporated in the consent judgement. Paragraph 3 of the consent judgement is to the effect that the defendant agreed to pay the costs of the lawyers amounting to Uganda shillings 20,000,000/= to be paid in full within the month of November 2012. It was further agreed that the goods the subject matter of attachment before judgement would be returned to the defendant and the defendant's account at Equity Bank would be unfrozen.

The first major ground of the application to set aside the consent judgement is that of duress. In paragraph 5 of the affidavit in support, the applicant avers that the respondent obtained an order to attach her goods after an ex parte judgment had been obtained in the main suit and the order was attached and marked as annexure "A". The order is an interim order before the registrar of this honourable court freezing the applicant's account number 1032200321113 or any account belonging to the applicant in Equity Bank Uganda Limited were frozen. Secondly the applicant's goods were to be jointly valued and attached pending further orders of the court. Thirdly the order was to be enforced for three weeks or until the hearing of the main application whichever one came earlier. The order is dated 10th of October 2012.

For the submission that the applicant was under duress, the applicant's counsel relied on the case of SOBETRA Uganda Ltd and another versus Leeds Insurance Ltd miscellaneous application number 454 of 2011 arising from civil suit number 69 of 2011. It had been argued in the case that the consent judgement/decree was drawn by the applicant's advocates in the Chambers and if at all the applicant was under duress and it could not be true that his lawyers were also under duress. In that case the court relied on the definition of duress in Black's Law Dictionary 17th edition and I make reference particularly to the explanatory notes referred to under the definition where it was noted that the general rule is that any wrongful act or threat which overcomes the free will of a party constitutes duress. The court held that the second applicant was under duress when he signed the consent decree because his arrest had already been done and the threat of imprisonment was imminent.

I have carefully reviewed the above authority. Both counsels seem to agree with the definition in black's law dictionary but did not scrutinise the explanatory notes. In the explanatory notes quoted by the court, the actual force has to be a wrongful act of force which overcomes the free will of a party. I have further considered the definition of duress in Osborn's Concise Law Dictionary 11th edition at page 156:

"In civil law the unlawful pressure to perform an act. It may render the act void or voidable."

According to Stroud’s Judicial Dictionary, it was held in the case of North Ocean Shipping Co. v. Hyundai Construction Co., The ‘Atlantic Baron’ [1979] 1 Lloyd's Rep. 89 that the threat by the builders of a ship to terminate a contract with the owners unless an extra 10 per cent on the price was agreed was "economic duress", and the agreement by the owners to pay the extra was a contract made under "duress", and therefore voidable. From the definition, it can be deduced that the "duress" has to be unlawful. What is unlawful needs further clarification and may depend on the facts of the case. Some general remarks can however be made. The first conclusion is that lawful force cannot be actionable as "duress". It is therefore necessary for the applicant relying on the ground of duress to prove that unlawful pressure was applied on him or her so as to lose his or her free will. Threat of the process of court cannot be unlawful pressure and is always exacted by litigants or potential litigants to threaten anybody they claim is in breach of the law to comply with their demands or else face the due process of law. Consequently it is necessary to establish by evidence that the force or threat of force or pressure which was applied was unlawful pressure and that as a consequence thereof, the applicant lost her free will.

By analogy, I have considered order 22 rule 35 of the Civil Procedure Rules which provides that: "Every warrant for the arrest of a judgement debtor shall direct the officer entrusted with its execution to bring him or her before the court with all convenient speed, unless the amount which he or she has been ordered to pay, together with the interest on that amount and costs, if any, to which he or she is liable, is sooner paid." Implied under order 22 rules 35 of the CPR is the threat of arrest unless the judgement debtor pays. It is a threat of the judicial process and any negotiations made pursuant to the threat which lead to an agreement cannot amount to civil duress because of the lawful threat of force.

The foundation of the applicant’s action is that the respondent filed a summary suit against the applicant and the applicant in miscellaneous application number 432 of 2012 applied for unconditional leave to appear and defend the suit. In that application, the applicant in paragraph 22 of the affidavit in support of the application avers that she had paid all the principal amounts of Uganda shillings 670,000,000/= plus all interest totalling to Uganda shillings 801,661,400/= that had been advanced to her by the respondent over a period from the years 2009 to 2011. I have compared this information to the averments of the respondent in this application. Annexure "A" is an agreement attached to the affidavit of the respondent dated 30th day of September 2011. In that agreement, the respondent referred to as a financier agreed to provide financing of Uganda shillings 600,000,000/= to enable the recipient import goods worth Uganda shillings 1,000,000,000/= for sale during the Christmas season and the recipient acknowledged receipt of the said. The affidavit in rejoinder does not rebut this information. Consequently the averments of the respondent that the subject matter of the suit was Uganda shillings 691,040,000/= and not Uganda shillings 168,000,000/= as averred by the applicant is more credible. She contends that by the time of filing the main suit, the applicant had only paid Uganda shillings 60,800,000/=. The accounts the respondent attached to annexure "A" is signed by the applicant and is dated 30th of September 2011. It shows that the total owing as on the 30th of December 2011 is Uganda shillings 691,040,000/=. The consent judgement paragraph 1 thereof shows that the parties agreed to settle the matter amicably by the defendant paying the plaintiff a sum of Uganda shillings 447,705,224/= being the principal amounts advanced in the year 2011. The question of how much was owing to the respondent is a question of fact within the knowledge of the applicant. To contest the consent judgement on the ground of duress is to suggest that the applicant agreed to the principal sum owing under duress. The principal amount owing is within the knowledge of the parties and not the counsels. Paragraph 2 of the affidavit in support of the application is that the actual amount borrowed was Uganda shillings 150,000,000/= and not Uganda shillings 600,000,000/= as stipulated in the agreement. The applicant contends that the respondent altered the agreement. The applicant does not explain how she came to endorse the accounts which are an addendum to the agreement annexure "A" to the affidavit of the respondent in opposition to the application. The affidavit in rejoinder is silent about annexure "A" and the addendum.

Subsequent to the application for unconditional leave to appear and defend the action, the respondent obtained an order of attachment before judgement. Thereafter the parties entered a consent judgement. The consent was executed after negotiations between the parties. It was endorsed by the applicant and the respondent and their respective counsels. The inventory was taken after an order of the court to attach the property of the applicant. The consent order itself releases the applicant’s property from attachment. The applicant was facing the pressure of the goods losing value albeit through a lawful order of the court. A lawful order of the court does not exert an unlawful force and cannot be the foundation for a submission that the party threatened with court process is facing any kind of duress that is actionable in civil law. The interim order attaching the applicant’s property does not amount to an unlawful force and does not exert unlawful pressure on the applicant.

After reviewing the evidence in support of the application and in opposition thereto, I do not agree that any unlawful pressure was applied on the applicant. Possibly the attachment before judgement put a lot of pressure on the applicant. That pressure is a lawful pressure and the remedy of the applicant was to apply to set it aside. It is to be lamented that the process of court can be used or even abused. In such cases, the remedy of the party is to seek the intervention of court. If indeed not all the goods were returned under the consent judgement that was attached, the remedy was to seek the intervention of the court. The respondent avers that the applicant was arrested when ferrying goods to an unknown destination. She was apprehended by the police. In her affidavit in rejoinder the applicant did not deem it fit to rebut the averment of the respondent. It is therefore proven according to paragraph 9 of the affidavit of the respondent based on her information that the applicant was arrested by the police when she ferried away goods disguising them as building materials. In the circumstances of this case, the pressure that the applicant was facing, did not amount to duress in civil law.

As far as the allegation of collusion is concerned, it is not based on evidence. It is an inference of the applicant and her counsel. The consent judgement was signed by both parties as well as their counsel and witnessed by the court bailiff. The fact that the court bailiff had introduced a former counsel of the applicant whom the applicant instructed is not evidence of collusion. The agreement to pay both lawyers Uganda shillings 20,000,000/= is also not evidence of collusion. It may be evidence of undue advantage taken by counsels but that is not the applicant’s case. In the premises, the applicant has not proved any collusion or duress at the time of execution of the consent judgement.

Lastly, the applicant argues a point of law that the suit was inappropriate for proceeding under order 36 of the Civil Procedure Rules. The applicant had applied for leave to appear and defend the suit. Pursuant to negotiations, a consent judgement was entered wherein the suit was resolved. The consent is a contract between the parties. It cannot be affected by the manner of institution of the suit or the merits of the suit. The consent will only be set aside if there is an illegality which would vitiate a contract between the parties. Bringing proceedings which are inappropriate for order 36 of the Civil Procedure Rules is a procedural irregularity if at all it is to be proven. In such cases, the party applying for unconditional leave to appear and defend the action would be given leave and the matter would proceed as an ordinary suit.

In the premises, there is no evidence in support of either ground, namely, duress, collusion or illegality for setting aside the consent judgement. In the premises, the applicant's application fails. Costs of the application shall be borne by the applicant.

Ruling delivered in open court this 5th day of July 2013

 

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Anguria Joseph for the respondent

Brendah Najuuko holding brief for Sam Kabanda

Parties in court

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge