Court name
Commercial Court of Uganda
Judgment date
4 October 2013

Nsimbe v Nanjubu (Miscellaneous Application-2012/360) [2013] UGCommC 168 (04 October 2013);

Cite this case
[2013] UGCommC 168

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 360 OF 2012

ARISING FROM CIVIL SUIT NO 298 OF 2008

MUSA NSIMBE}..............................................................................APPLICANT

VERSUS

JOSEPH NANJUBU}......................................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant filed this application for orders that the terms of the consent judgement entered between the parties is varied to meet the intention of the parties in respect of the agreed interest of 7% as opposed to pay 27% per annum that was written in the consent judgement in the interest of justice. Secondly that the time within which to pay the interest should be extended for 8 months owing to the respondents refusal of obtaining the same from one Frank Kintu. Thirdly, it is for stay of execution of the consent judgement for the above reasons. Lastly the applicant seeks for an order for costs of the application to be provided for.

The grounds of the application are that the parties executed a consent judgement in the main suit on the 30th of May 2011. In the consent judgement the applicant and his co-defendant had to pay a decretal amount of Uganda shillings 60,500,000/= within eight months after receiving the caveat withdrawal forms which the applicant has personally paid. Secondly that the parties had agreed that interest should be 7% per annum but on the contrary, the consent judgement extracted by counsel Mbogo, counsel for the respondent provided for 27% per annum. Fourthly that it defeats justice and fairness if the interest claimed of 27% per annum is enforced as opposed to the agreed 7% per annum. Lastly that owing to the applicants illiteracy level and negligence of his counsel, the anomaly was not detected until recently when the judgment creditor arrested the applicant claiming Uganda shillings 72,473,000/= which is substantially the accrued interest as the decretal amount has already been paid. The applicant asserts that the application has a high chance of success and that it is in the interest of justice that the application is granted. The application is supported by the affidavit of the applicant which primarily repeats the grounds in the notice of motion.

The application was filed on 29 June 2012 and issued on 2 July 2012. The first affidavit in reply is deposed to by Counsel Charles Mbogo, counsel for the respondent in High Court civil suit number 298 of 2008. The second affidavit is that of the respondent. The respondent avers that the parties agreed that interest shall be at a commercial rate of 27% and not 7% as alleged by the applicant. Before the consent judgment the interest claimed by the plaintiff was at 10% per month. The consent reduced the interest to 27% per annum. On the 20th of May 2011 during negotiations, a settlement was reached with the respondents advocate and the consent judgement was executed. Subsequently the application never took off. On 13 February 2013 the court granted the applicant an adjournment for the very last time and fixed the case for 6 March 2013 at 11:30 AM. Subsequently the suit was not mentioned.

On the 11 of September 2013, the applicant was in court and the respondent prayed  that the application proceeds. He further prayed that the because the applicant failed to proceed that the court should decide the suit under order 17 rule 5 because the applicant had taken over 8 weeks and had failed to fix the suit for hearing. He argued that on 13 February 2013 the court gave a last adjournment and since that time the respondent made efforts to fix the case for hearing while the applicant did nothing.

I have carefully considered the applicants application. It is an application to set aside a consent judgement executed before his worship the mediator John Ochepa E. Arutu on the 20th of May 2011. The first page of the document signifying the consent of the parties is executed by the respondent to this application and witnessed by Messieurs Mbogo and Company Advocates. On the second page it is executed by the applicant/second defendant in the presence of his counsel. Finally it was endorsed by the mediator on the 30th of May 2011.

Paragraph 1 provides that the defendants shall pay the plaintiff Uganda shillings 60,500,000/= within eight months from the date of receipt of the withdrawal of the caveat on Kibuga Block 18 plot numbers 1262, 1263, 1264, 1265 and 1266. In paragraph 2 of the consent judgement, it is provided as follows:

"The above amount shall attract interest at a commercial rate of 27% per annum from 6th of August 2008 the date of receipt of the money until payment in full."

The applicant alleges that the terms of the consent judgement entered between the parties should be varied to meet the intention of the parties in respect of the agreed interest of 7% as opposed to 27% per annum. The applicant asserts that the he agreed to interest at the rate of 7% per annum but on the contrary, the consent judgement extracted by the counsels provided for 27% per annum. The applicant further avers that owing to his illiteracy level and negligence of his counsel, the anomaly was not detected until when the judgment creditor arrested him and was claiming Uganda shillings 72,473,000/=. In his affidavit in support he deposes that he had so far paid Uganda shillings 60,500,000/= to the respondent. Secondly that he was awaiting computation of the outstanding interest when he was arrested by the respondent’s agents. Paragraph 9 of the applicant’s affidavit in support of the application is pertinent. In paragraph 9 he deposes as follows:

"That I had agreed with Mr Mbogo that I shall pay the principal amount and that Mr Frank Kintu shall pay the interest but he has since turned against me and is demanding the whole amount from me.”

Furthermore in paragraph 7 he deposes that the amount based on the interest is much more than what they agreed to and was unfair, unconscionable and unjust in the circumstances of the case. In paragraph 3 the applicant deposes that he agreed during negotiations to the interest at 7% per annum on the principal amount.

I have carefully considered the depositions of the applicant. First of all his complaint seems to be against Mr Frank Kintu who is the first co-defendant. Secondly he does not explain how and where he came to execute the document which forms part of the consent judgement. The consent judgement is a judgement against both defendants. Secondly it is a matter of execution of the consent judgement. I have further noted that the consent judgement is also executed by Mr Frank Kintu the first defendant. Thirdly it is only the applicant who is the second defendant to the suit who has applied to set aside the consent judgement. The grounds upon which a consent judgement may be set aside were considered in the East African Court of Appeal case of Brooke Bond Liebig (T) Ltd v Mallya [1975] 1 EA 266  where Law Ag. P held as follows:

The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani v. Kassam (1952), 19 E.A.C.A. 131, where the following passage from Seton of Judgments and Orders, 7th Edn., Vol. I, p. 124 was approved:

“Prima facie, any order made in the presence 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 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.”

The grounds are that a consent judgement can be varied or set aside where it is obtained through fraud or collusion, or by an agreement contrary to the policy of court or where the consent is given without material facts or in misapprehension or in ignorance of material facts or for any reason that would enable the court set aside an agreement. The applicant has not attempted to explain clearly why he and the first defendant endorsed the consent instrument.

Secondly if he were illiterate, his affidavit in support of the Application has not been verified as required by the Illiterates Protection Act.  He cannot say that he is illiterate otherwise the affidavit in support of his own application would be in contravention of the Act and the application would be incompetent.

I have further considered order 17 rule 4 of the Civil Procedure Rules which provides that the court may proceed to decide the suit forthwith upon default of a party to produce his or her evidence or cause the attendance of his or her witnesses or to perform any other act necessary for the further progress of the suit.

On the 30th of February 2013, the applicant’s application was given a last adjournment. Subsequently on 11 September 2013, the applicant was supposed to proceed but could not do so. Consequently, the court has proceeded under order 17 rule 4 of the Civil Procedure Rules to the decide the suit.

The applicant has not raised any grounds for setting aside a consent judgement. Some other matters raised are matters arising out of execution and ought to be brought in execution proceedings under section 34 of the Civil Procedure Act in the Executions and Bailiffs Department of the High Court. For instance the question as to why the first defendant who is alleged not to be paying the interest is a matter that belongs to execution proceedings.

In the premises the applicants application lacks merit and is dismissed. Because the applicant was not represented by counsel in this proceeding coupled with the fact that he is heavily indebted, the application is dismissed with no order as to costs.

Ruling delivered in open court on 4th  October 2013.

 

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Aggrey Bwire for the Applicant,

Applicant in Court

Charles Mbogo in court

Charles Okuni: Court Clerk.

 

Christopher Madrama Izama

Judge

4 October 2013

Aggrey Bwire:

I seek leave to appeal the ruling.

Court

If leave is required, then leave is granted for the Applicant to appeal this ruling.

 

Christopher Madrama Izama

Judge

4th October 2013