THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION No 729 OF 2019
(Arising From Civil Suit No. 2464 of 2016)
THE KABAKA OF BUGANDA…………………………………APPLICANT
MUSIITWA HERBERT MULASA……………………………RESPONDENT
BEFORE: HON. MR. JUSTICE HENRY I. KAWESA
This application was brought by Notice of Motion under Order 46 rule 1& 8 of the Civil Procedure Rules and section 82 and 98 of the Civil Procedure Act and section 33 of the Judicature Act for orders that;-
- The consent judgment dated 8th July 2016 and the resultant decree dated 20th December 2018 purportedly entered by the Applicant and the respondent in HCCS No. 2464 of 2016 be reviewed.
- Costs be borne by the respondent.
The grounds of the application are contained in the notice of motion and the affidavit of Kizito Bashir Juma a lawful attorney to the Kabaka of Buganda and briefly are that:-
- The Applicant is an aggrieved party as he claims a legal interest as the owner of land comprised in Kyadondo Block 273 Plot 4849 Zana which land is subject to the consent judgment sought to be reviewed and set aside.
- The Applicant has never entered into a consent judgment with the respondent.
- The consent judgment was erroneously and illegally entered by a person who had no authority in law to enter into a consent for the Applicant.
- That leaving the consent standing will be an abuse of Court process.
The facts giving rise to this application according to the affidavit in support are that; on the 22nd July 2015, the respondent filed a civil suit against the Applicant in the High Court seeking orders of specific performance, payment of mesne profits and general damages. That a consent judgment was purportedly entered by the Applicant and the respondent on the 8th July 2016 in HCCS No.617 of 2015, however that the person who entered the said consent had no legal authority and as such, that the consent judgment was erroneously and illegally entered.
It was his evidence that the persons who had the Applicant’s power of entering the consent judgment were the Kaikkiro of Buganda (Charles Peter Mayiga) and the Attorney General of Buganda (David F.K Mpanga) vide Power of Attorney Registration No. 7934 of 2016 dated 2nd June 2016, and that neither the Applicant nor his Attorneys entered a consent as required by law. That the Applicant is aggrieved by the consent which obliges him to grant a lease on the land with multiple clients at no fee, that the suit land at the time of entering a consent had a lease a running lease registered to John George Wamala Mulindwa for a term of 49 years with effect from 1969 and that he enjoys the right of first option to renew the said lease in accordance with the laws and policies of the Applicant. That the consent judgment was entered in total disregard to the law and policy which renders the same unenforceable. Finally, that the Applicant has a good viable defence to the respondent’s main suit and that he Applicant is interested in being heard.
The Applicant attached the following documents as evidence of his assertions; - Power of Attorney granted to the deponent, the Katikkiro of Buganda and Attorney General of Buganda dated 4th August 2017 after he had revoked those issued on 2nd June 2016 as Annexure ‘A’, a copy of a plaint Vide HCCS no.619 of 2015 as Annexure B1, a copy of a consent judgment as ‘Annexure B2’.
In reply, the respondent (Musiitwa Herbert Mulasa) through affidavit evidence disputed the above facts and avers that the consent judgment was not entered into by the Applicant and the respondent but the same was dully and lawfully entered into by the Applicant and the respondent and dully endorsed by Court, that the representatives of the Applicant and his then lawyers M/s Kasumba, Kugonza during the course of Court mediation vide Mediation Cause No. 367 of 2015 negotiated the terms of the consent together with him and his then lawyers and that this culminated into the parties signing the consent judgment dated 8th June 2016 in the presence of counsel for both parties and the Applicant’s representatives. That this application is an afterthought having been brought 3 years after consent judgment had been signed and after he has applied for execution of the same.
In his supplementary affidavit, the respondent avers that in an additional police statement dated 16th April 2019 by Mulindwa Vitus Kato (Administrator and son to the estate of the late John George Wamala Mulindwa) which was witnessed by his siblings, that clearly stated that as a family they no longer had any claim over the suit piece of land based on the fact that the respondent is the lawful owner.
The respondent attached the following evidence to his claims; - a copy of a letter of transmission of the consent marked PE1, a copy of an application for execution dated 6th February 2019 marked PE2 and, a copy of an additional statement withdrawing the case marked PEX3.
In rejoinder, the Applicant maintains that the he has never entered into any consent with the respondent and that it was wrongly executed by a person who at the material time was not a holder of Powers of Attorney to bind the Applicant. That the signature purporting to be of the Applicant on the consent does not belong to the Applicant nor to his lawful attorneys and that the signatures of the Applicant is that contained on the Powers of Attorney so attached. He avers that the Applicant only learnt of the consent judgment when he was served with the respondent’s application for execution and notice to show cause why the execution should not issue against him and as such, that the application is not an after-thought.
Therefore, what is in dispute is that the Applicant to this application has never consented to the alleged judgment and neither his attorneys consented to the same.
In counsel for the Applicant’s submission, two issues were raised for determination by this Court, to which;-
- Whether the Applicant is an aggrieved party within the meaning of the law.
- whether there are grounds for having the consent judgment reviewed and/set aside
Resolution of the issues.
Whether the Applicant is an aggrieved party within the meaning of the law:
To find whether the Applicant is an aggrieved party, in the case of Re-Nakivubo Chemist (U) Ltd, 1977 HCB 312, Manyindo J as he then was defined as;
“An aggrieved person is a person who has suffered a legal grievance, which has wrongly deprived him of something”.
In the case of Muhammed Allibhai versus W. E Bukenya SCCA 56/96, Court upheld the fact that;
“an aggrieved person can bring such application in their own right”. (Emphasis added)
Further, in Robinah Matanda & Ors versus P. R. Patel & Anor Misc. Application No. 207 of 2017, it was noted that the burden is on the Applicant to prove that he has suffered a legal grievance. To discharge this burden therefore, counsel for the Applicant submits that the Applicant is a registered proprietor of land comprised in Kyadondo Block 273 plot 125 which is the subject matter of the consent judgment.
The Applicant in his affidavit in support deposes that the person who entered the said consent had no legal authority and as such, that the consent judgment was erroneously and illegally entered. The respondent on his part submits that the earliest power of attorney by the Applicant is dated 2nd June, 2016 and that it was executed after the plaint and the written statement of defence in the head suit had been filed in Court. That there is no evidence that the power of attorney or the subsequent ones were brought to the attention of Court except that they were brought when this application was filed after close to 4 years since the consent judgment was executed.
Counsel for the respondent relied on the cases of; B.M Technical
Services versus Francis Ruganda 1997(HCB) where it was held that;
“ an advocate works on instructions of his client and where he
does so, he/she binds the client”.
He also cited Olal versus Steel & Tube Industries Ltd HCCS No.7 of 2016 for the position that Court could not set aside a consent judgment when there was nothing on record to show that counsel for the Applicant entered into it without instructions.
According to Annexure ‘B2’ of the affidavit in support which is a consent judgment vide Civil Suit No.2464 of 2016 formerly Civil Suit No. 619/2015 Nakawa, dated 19th September 2016 it was ordered that;-
“upon expiry of the current lease of the land/property comprised in Kyadondo Block 273 plot 125 situated at Nfuufu Zone, Zana Wakiso district on the 31/03/2018, a fresh lease of a term of 49 years for part of the said land measuring approximately 0.097 of an hectare shall be prepared by the defendant as a lessor in favor of the Plaintiff as the lessee at no cost”
“The Plaintiff shall remain in possession of the suit property after the execution of this consent judgment till his fresh lease in paragraph (a) above expire or as parties shall agree in the lease agreement for the said new lease”.
“That each party shall meet their own costs”.
Using the above order, the respondent instituted execution proceedings vide Execution Misc. Application No.08 of 2019 as annexure PE2 attached to the respondent’s affidavit in reply.
The 1st power of attorney were granted to Owekitiibwa Charles Peter Mayiga and Owekitiibwa David F. K Mpanga, the consent judgment was executed on 19th September 2016, and the fresh power of attorney granted on the 4th June 2017 revoking the earlier ones. This means that by the time the consent judgment was entered into by the parties on the 19th September 2016, the 1st power of attorney was still in effect and failure by the respondent to prove that one of the signatories are those mentioned in the power attorney renders the Applicant an aggrieved party.
Whether the consent judgment entered into on 19th September 2016 can be set aside
In the case of Kamanda versus Nakandi & Anor (Misc. App No. 0775 of 2017) Justice this Court cited with approval the case of Mohamed Allibai versus W E Bukenya Mukasa and Departed Asians Property Custodian Board, for the position that; -
‘Consent judgments can be set aside for fraud, collusion or for any other reason which would enable Court to set aside an agreement’.
The learned judge went on to cite the case of Brooke Bond and Hebig T Ltd versus Malya (1975) EA 265; where it was stated that;
‘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 by an agreement contrary to the policy of the Court ….. or if consent was given without sufficient material facts or in the misapprehension or ignorance of material facts or in general for a reason which would enable the Court to set aside an agreement…..’.
Also in Ken Group of Companies Ltd. versus Standard Chartered Bank & 2 Ors, H.C.M.A 116 of 2012 (Commercial Court) per Justice Madrama citing the case of Hirani versus Kassam 1952 EA at 131 where the Court of Appeal held that;
“A consent judgment cannot be varied or discharged unless obtained by fraud, collusion, or by an agreement contrary to the policy of Court or if the consent is given without sufficient material facts or in misapprehension or ignorance of material facts or in general for any reason which would enable the Court set aside an agreement.”
Therefore it can be seen that the consent judgment, like any other consents can be set aside on the grounds of;-
- An agreement contrary to the policy of Court.
- The consent is given without sufficient material facts or in misapprehension or ignorance of material facts or in general for any reason which would enable the Court set aside an agreement.
In this application, the Applicant is alleging that persons who entered the consent did not have authority to do the same. The Applicant submits while relying on order 3 rule 1 and 2 (a) of the Civil Procedure Rules that the representatives of the Applicant negotiated the terms of the consent judgment. However, that the wording of the order applies to appearances, applications and acts which include mediations and signing of Court documents. That in absence of evidence that the Applicant himself as portrayed in the consent judgment or his recognized agent were parties to the consent makes it void. Moreover, that the consent judgment obliged the Applicant to grant the respondent a lease on land with a running lease at no fee, that the person with a running lease or his Administrators in case of death enjoys the right of first option to renew the lease in accordance with the law and policies of the Applicant.
Further, that the Applicant’s application for review of the impugned consent judgment is premised on the element of ‘any other sufficient’ which is a broader scope under which judgments, like this one may be reviewed. Counsel cited the case of Linda Lucia versus Edith Nakandi Misc. Application No.464 of 2019 and submitted that the consent judgment in issue was issued in presence of counsel for the Applicant that the same was not binding on the Applicant because the person who endorsed it was not the Applicant nor his recognized agent within the meaning of law. That this amounted to collusion between the Applicant’s former advocates with the respondent. That the consent judgment was obtained fraudulently as it portrays the Applicant as a signatory whereas not, that the consent was issued in total disregard to the law and that the practice of the Courts demands identification of the parties, that neither the Applicant nor his recognized agents were identified.
In reply, the respondent submits that it wasn’t the obligation of the respondent to cross check whether the Applicant had signed off the stated consent judgment, and that both the respondent and Court had to rely on counsel for the Applicant for purposes of that representation.
On the whole the Applicant has not raised any ground to merit review and setting a side of the consent judgment and that the application should be dismissed with costs.
This Court has the discretion to review and/or set aside the consent judgment and to set aside the consent, I have to find whether there is justification for the same.
It was the Applicant’s submission that the Applicant’s former counsel in collusion with the respondent signed the consent without the Applicant himself or his recognized agent. That the Applicant has a good defence to the suit before this Court.
In the instant case, the ground for review and setting aside the consent judgment is that there is ‘any other sufficient’ cause. In rejoinder, it was submitted that the signatories to the consent judgment were four; - the Plaintiff, his Advocate as well as the defendant and his advocate. That the signature that purports to be for the defendant/Applicant is not his and that it does not belong to any of his lawful attorneys.
In Blasio Konde versus Blandina Nankya C.A.C.A No.07/1980, it was held that;
“it is important and necessary that any settlement be agreed to by both counsel in consultation with their clients. Only in that way should the settlement be binding on the parties”.
And also In the Supreme Court case of Attorney General & Uganda Land Commission vs James Mark Kamoga SCCA NO.8 of 2004 it was held that;
‘a Consent can only be set aside if the consent was actuated by illegality, fraud or mistake. A consent judgment can be set aside on limited grounds’.
It was further held that;
“prima facie, any order made in presence and with consent of counsel is binding on all parties to the proceedings or action, and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to policy of the Court………or if the consent was given without sufficient material facts, or in misapprehension or ignorance of material facts, or in general for a reason which would enable Court to set aside an agreement”.
Underlining is for emphasis.
According to the evidence on file, it is alleged that the consent judgment was not signed by the Applicant himself or his recognized agents. Under Order 3 of the Civil Procedure Rules, gives authority of representation by a recognized agent and advocates are recognized agents of a party to a suit, however on the authority of the Supreme Court case of Attorney General & Uganda Land Commission versus James Mark Kamoga (supra), ‘the consent must be made in the presence and consent of the parties’. The consent was meant to be entered into in the presence of both parties who have agreed on the terms with the guidance of their advocate and before the trial judge handling the matter.
In this regard, I find that the consent judgment was entered contrary to the policy of Court. This was an irregularity on the part of the opposite party/Applicant and hence praying for the same consent to be set aside.
From the record, there was no agreement between the parties on what was signed, though the respondent’s submits that the Applicant’s lawyer was duly instructed, this instruction covered only representation as provided by Order 3 of the Civil Procedure Rules, signing of consent is to be done by the parties or persons authorized to do the same.
The consent judgment is hereby set-aside, as prayed.
Henry I. Kawesa
Mr. Mukwaya Edward; Counsel for the Applicant.
Ms. Ketra Nasimbwa; Counsel for the Respondent.
Both parties are absent.
Ruling delivered in chambers in the presence of the above.