THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS APPLICATION NO. 94 OF 2017
(ARISING OUT OF EMA NO. 1939 OF 2016)
(ARISING OUT OF MISC. APPLICATION NO. 157 OF 2016)
(ARISING OUT OF CIVIL SUIT NO. 455 OF 2002)
- OTIM TALIB
- BOSCO OGWANG
- GABRIEL OKUMU
- JANE BIRUNGI & 1397 OTHERS --------------- APPLICANTS
- UGANDA REVENUE AUTHORITY------------------ RESPONDENT
- KCB BANK LTD ------------------------------------ GARNISHEE
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
This application was brought under S.33 of the Judicature Act, S.98 CPA and 0.52 rr 1, 2 and 3 C.P.R. The Applicants sought the following orders:-
- The consent entered into on 22.12.16 between Sekabanja & Co. Advocates and the First Respondent be declared null and void and or be set aside.
- The Respondent be directed to refund Ug. Shs. 1,034,442,861/- illegally returned by the former Applicant’s lawyers to its bank Account Number 2201102635 held with the garnishee bank.
- The Garnishee Bank be directed to debit the Respondent’s account No. 2201102635 in the sums of Ug. Shs. 1,034,442,861/- plus accrued interest at the rate of 2% per month from 22nd December, 2016, until payment in full and credit NC Bank (Bugolobi Branch) Account No. 3000048417 in the names of Kasiisa & Co. Advocates (clients) for the benefit of the Applicants.
The Applicants also sought costs of the application.
The grounds of the application are that:-
- On 19.12.16, the garnishee order nisi was made absolute
- The garnishee honored the order absolute by transferring a sum of Ug. Shs. 1,034,442,861/- to KCB Bank (U) Ltd account No. 030290003434 in the names of Sekabanja & Co. Advocates, the Applicants former lawyers.
- The Respondent filed MA 2869/16 seeking interalia a stay of the Garnishee Order Absolute but withdrew the same by letter dated 21.12.16.
- On 21.12.16, the respondent deactivated the garnishee bank from the URA portal allegedly pending resolution of key issues.
- On 22.12.16, the impugned consent was entered purportedly to reverse and or cease an execution which has already taken its course.
- The impugned consent was executed under duress following the supervision of the Garnishee Bank a client to our former lawyers from the URA portal.
- The Applicants former lawyers Sekabanja & Co. Advocates without any iota of instructions to divest the Applicants and 1397 others of their benefits entered into a consent with the Respondent without the knowledge or notification to the Applicants who were to realize their benefits through the implementation of the garnishee order absolute.
- The purported consent is illegal and contrary to the policy of the court.
- It would be unfair to visit on the Applicants a consent purportedly entered by their former lawyers who were not explicitly instructed to do so after the garnishee absolute had been implemented by the garnishee.
- It is just and equitable and in the interests of justice that the orders sought are granted to maintain the inviolability of court orders.
The application is supported by the affidavit of Otim Talib the First Applicant.
There is an affidavit in reply to the motion deponed by Patrick Sekiwala, Manager Collections in the Corporate Services Department of URA.
He states interalia that the KCB Bank Account that was garnisheed for the benefit of the Applicants, was a tax collection account and was therefore not subject to attachment.
By not informing the court about the nature of the account attached, the Garnishee Bank was in breach of its mandate to the Government, and hence the suspension.
Further that, the consent was entered into by the Applicants duly represented by their lawyers.
The lawyers not being the lawyers of the Garnishee Bank were not pressurized to enter into any consent with Uganda Revenue Authority (URA).
The consent was signed by Counsel of the parties to the consent with the full knowledge of their clients.
There was a voluntary understanding between Sekabanja and Co Advocates and the Applicants, and URA that the illegal attachment be set aside and the Government money returned to the tax Collection Account.
The above understanding informed the making of the consent, and the same was voluntarily entered into.
And that the attachment of the Tax Collection Account is a void on the Central Government account and thus illegal.
Therefore that, the court should refrain from endorsing the liability brought to its attention by First Respondent and dismiss the application with costs.
There is another affidavit in reply to the motion, affirmed by Haluna Mabeeta.
He states that, the Execution Division only being mandated to handle Execution of Decrees of High Court Divisions, High Court Circuit Nakawa, and specified Magisterial areas, does not entertain suits seeking to set aside consent of the parties.
That the application is frivolous, vexatious and bad in law, as the Applicants purport to bring the present suit in their names, when they never appeared and never prosecuted the underlying suits as parties, in the absence of a representative order in their favor.
The procedure taken to purportedly set aside the consent as well as Garnishee the Tax Collection Account for the second time is legally untenable.
Also that there is no evidence to support the application. More so Tax Collection account No. 2201102635 at KCB Bank is an account of the Government of Uganda opened in the names of URA, with permission of the Accountant General and is therefore not attachable.
It is with the realization that the account is not attachable that the Applicants and their Counsel and the First Respondent consented that the decree absolute against the Government be set aside.
And it was in the same spirit that the parties and their Counsel agreed that the money attached from the said account be returned to the Tax Collection Account.
It was further agreed that all execution against URA cease forthwith, pending the determination of all matters at the Court of Appeal.
The deponent asserts that the policy of court requires that an illegality once discovered must be brought to the attention of court. Therefore that the consent setting aside the execution was lodged in court, bringing to court’s attention the parties agreement to set aside the illegal attachment of the Tax Collection Account.
That for the Applicants to claim that URA has not filed any appeal is a lie, as there is Civil Appeal No. 22/17 before the Court of Appeal (memo signed by Registrar on 09.02.17- no date of receipt) (Notice filed 19.09.16) – paragraphs 11-14).
That the consent to return the funds was with the full knowledge of the Applicants as they were still represented by Ssekabanja & Co. Advocates. And the consent was voluntary and valid and free of any vitiating circumstances.
The Applicants ought to wait the determination of the appeal. The Applicants wish to benefit from the order which has been appealed and yet the appeal has a high likelihood of success.
If the Applicants are paid, they are not capable of returning the funds if the appeal succeeds, more so since the amount is substantial and the Applicants are scattered all over the country and cannot therefore be individually traced for refund purposes.
The court should not question the agreement parties entered into to stop illegal attachment as it is obliged to preserve URA’s right of appeal.
The application is in bad faith and ought to be dismissed with costs.
The affidavit in rejoinder is deponed by Olyeny Bosco s/0 late Ogwang John Washington who was one of the Applicants.
He states interalia that the affidavits in reply to the application contain deliberate falsehoods as Ogwang John Washington was dead by 22.12.16 when the impugned consent was entered into.
When the application was called for hearing on 05.05.17, Counsel for the Applicants objected to the affidavits of the Respondents on the ground that they contain deliberate falsehoods. He applied that they be struck out with costs.
He referred to paragraph 4 of Mbeete’s affidavit and submitted that contrary to what is stated therein, the affidavit in rejoinder of Otim – Annexture S1 – the record of proceedings indicates that the Applicants attended court.
Further that, paragraph 8 of the same affidavit is false in light of the fact that Ogwang John Washington had passed away at the time of the alleged consent as confirmed by the death certificate. He could not therefore have agreed to entering the said consent.
Further that, the purported appeal by the Respondent to the Court of Appeal was filed on 09.02.17 but the Applicants affidavit was deponed on 17.01.17, and therefore was not wrong to state that there was no appeal then. The Appeal, Counsel insisted, was filed as an afterthought to defeat the Applicants application.
None of the Applicants signed the purported consent and therefore their consent cannot be imputed in absence of express instructions.
To claim that Ssekabanja and Co. Advocates are not lawyers of KCB the Garnishee bank is a lie as the affidavit of the First Applicant paragraph 16 points out a number of cases where the said firm of Advocates represents KCB – see paragraphs 11, 12, 13 and 14 of Sekiwala’s affidavit are also false.
Counsel prayed that the affidavits be struck out with costs to the Applicants. He relied on the case of Bitaitana vs. Kananura  HCB 37 where it was held that “inconsistencies in affidavits can’t be ignored however minor, since a sworn affidavit is not a document to be treated lightly. If it contains an obvious falsehood, then it naturally becomes suspect”.
It was Counsel’s assertion that, if the Respondent’s affidavits are found to be false, then the application would stand unopposed and court should determine it on its own merit. – The case of Nangiro John vs. Electoral Commission & Another  IULR 312 was cited in support.
Going to the application, Counsel referred to the grounds thereof, the affidavits for and against the application, and submitted that court should consider the question whether the impugned consent should be declared null and void or be set aside.
That since as indicated in the First Applicant’s affidavit, the execution was complete, and the First Respondent concedes to this; the account was garnisheed, the money removed there from for the benefit of the Applicants, execution was complete and there was nothing to stay in absence of a valid court order.
Court was for those reasons urged to declare the impugned consent a nullity.
Further that, the Consent was purportedly made under MA 220/16, which had been dismissed by court on 19.12.16 and has never been reinstated- court was referred to the case of Blasio Konde vs. Blandina Nankya CACA 07/80 P8 where it was held that “the parties cannot by consent reverse a judgment of court. Issues of law cannot be subject of consent orders”.
It was argued that, the rational of the holding is to ensure that the sanctity of court orders is safe guarded.
Court was urged to find that it was illegal for the First Respondent to unilaterally engage the Applicants former lawyers without consent of the Applicants, to enter the consent or without a vitiating court order.
It was then prayed that the consent should be declared null and void.
It was pointed out that the consent purported to set aside the garnishee order absolute and cease execution pending disposal of a non-existent appeal.
The consent was signed on 22.12.16 yet there was no appeal by then. Annexture HM2 – 2W affidavit in reply confirms that the appeal was filed much later after the consent had been entered into.
Counsel argued that, it was illegal to purport to cease an execution that had been completed by way of garnishee absolute. Yet, the procedure by which garnishee absolute can be set aside is provided for by the rules. In support of the argument, Counsel relied upon the case of Unique Holdings Ltd vs. Business Skills Trust Ltd MA 402/12 where Justice Madrama held that “Garnishee Order Absolute or proceedings of a garnishee order can only be set aside upon application to set aside the order or proceedings under 0.23 and 7 C.P.R”.
That there is no such application before court.
Counsel then pointed out that the First Respondent attempted to have such application – Annexture P First Applicant’s affidavit. The application was filed on 21.01.16 but it was withdrawn on the ground that it had been over taken by events. The garnishee order absolute had already been honored by the Bank.
It was then argued that it is most unfortunate that the Respondent being alive to the legal position opted to impose itself by obtaining a consent from the Applicant’s former lawyers without the Applicant’s knowledge.
That on that ground alone, the consent should be declared a nullity or be set aside with costs.
Without prejudice to the objections raised against the affidavits, it was submitted that the Applicants in their affidavits deny ever instructing their former lawyers to enter the impugned consent.
The fact that the Applicants never consented is further borne out by paragraph 8 of Mbete’s affidavit in reply, who claims that the consent was with the knowledge of Ogwang and other Applicants, while in fact Owang was long dead.
The case of Blasio Konde vs. Blandina Nankya (Supra) was relied upon for the holding that “it is important and necessary that any settlement should be agreed to by both Counsel in consultation with their clients. Only in that way should the settlement be binding on the parties”.
The case of Tibaingana vs. Kabwenda C.R 06/2 where Lady Justice Monica Mugenyi held that “parties consent to execution of consent judgments cannot be presumed. It should be expressly communicated to their Advocates or at the very least indicated by their (parties) signing the purported consent judgment”, was also cited in support.
It was argued that, in the present case, it is clear from the reading of the consent judgment in question, that such-endorsement by the parties was not secured.
Court was prayed to find that, the Applicants, whose benefits were already on their lawyers account never consented to divest themselves of their long awaited benefits.
And that, in light of all the illegalities perpetuated by the First Respondent against the Applicants, the consent should be declared null and void in keeping with the principle of the case of Makula International Ltd vs. Cardinal Nsubuga & Another  HCB, where it was established that “a court of law cannot sanction what is illegal. An illegality once brought to the attention of court overrides all questions or pleadings including all admissions made therein”.
Court was requested to grant the remedies sought by the Applicants in the spirit of upholding the inviolability of court orders. That doing so would send out a message to Government entities that they too are obliged to respect court orders.
In response, Counsel for the Respondents raised preliminary objections relating to the competence of the application.
He submitted that the motion as presented was incurably defective because it lacks a supporting affidavit.
He argued that the motion has only one purported supporting affidavit deponed by the First Applicant. That the affidavit is not dated (Counsel’s copy not dated).
It was submitted that the law on affidavits is clearly stated in on Evidence 14th Edition 1993 P.2183 and Black Law Dictionary 6th Edition P.58, which was cited with approval in Election Petition 02/02 Dr. Runumi Mwesigye Francis vs. Returning Officer and 2 Others (by Hon. Justice Muniraguha (RIP) that “an affidavit is a statement or declaration in writing on oath or affirmation before a person having authority to administer oath or affirmation”.
It was pointed out that the case refers to the Oaths Act and explains the procedure involved in making affidavits.
And that, court stated that “for a person to swear an affidavit on behalf of another, that deponent must have express authority to do so in writing as prescribed by 0.1 r 12(1) and (2) C.P.R.
And that, one cannot depone an affidavit on behalf of others simply because they are joint parties to a suit.”
Counsel argued that, in light of that authority, the motion in the present application has a defective affidavit which could not have been made on oath because it is not dated. A person making an oath is naturally expected to indicate the date he took such oath.
That taking an oath goes to the root of truthfulness of a witness before court.
In the circumstances, Counsel asserted, court should find that there is no valid affidavit in support of the motion and thinks the application lacks the supporting affidavit which is evidence, and ought to be struck out on that ground alone.
Further that, should court hold that the affidavit is valid and therefore lack of a date is not fatal, the affidavit should be struck out for want of written authority by the 1400 Applicants, as none was given to the First Applicant, to swear affidavit on their behalf.
That the 2nd – 4th Applicants did not deponed any affidavit in support of the motion, and therefore they have presented no evidence before court in support of the motion.
Further that, the second objection relates to lack of a representative order obtained by Ogwang John Bosco to prosecute the instant application and the ones from which this one emanates. None is attached to the motion and to all the suits referred to therein before, Counsel argued. Yet this is a mandatory requirement under 0.1 r 8 C.P.R.
That the principle was reaffirmed in the case of Henry B Kamoga & 5 Others vs. Bank of Uganda HCCS 62/06 where Justice Musota in following other judicial precedents held that “in a representative suit, it is mandatory for the plaintiff to obtain leave of court before filing it. And a suit without leave of court is incompetent and cannot be stayed but must be struck out”.
Counsel asserted that, in the present case, there was no representative order to sue URA otherwise a copy would have been furnished to court.
Court was urged to find that the current application is untenable in absence of a representative order and that the suits from which the applications emanate were instituted and prosecuted in absence of a representative order, which was illegal and court cannot close its eyes to the apparent illegality brought to its attention.
And that since the current application seeks to give force to suits that lacked valid representative orders, it should be dismissed.
The third objection, Counsel stated related to the competence of the Applicants in instituting this suit. The Applicants purport to be represented persons, given that the underlying suits from which this one emanates was commenced by Ogwang John Washington. He referred to the attachments to the affidavit in support of the motion; some letters refer to Owang John Washington as a party who sued URA. The rest are represented persons.
It was then argued that, if the Applicants wished to become parties to any subsequent proceedings against URA, upon the demise of John Washington, they ought to have obtained leave of court under 0.1 r 8 C.P.R. That is, they ought to have applied to become parties.
They did not do so.
Otherwise that, they remain free riders. They cannot commence any case unless they apply to court to join and become a party. They did not do so.
That the interests of Ogwang John Washington could have been taken care of by a duly appointed Administrator of his estate to pursue this case, since it is abundantly clear that, at the time of the execution John Washington was already deceased.
It therefore means, Counsel added, that the interest of Ogwang John Washington in absence of valid letters of administration and without the beneficiaries being allowed to continue with the suit by court upon a valid application could only be protected by his duly appointed Advocate Ssekabanja under 0.3 C.P.R. The case of Lena Nakalema Binaisa & 3 Others vs. Mucunguzi Myers MA 460/13 by Justice Bashaija was cited in support. The case referred to 0.3 C.P.R where “a person can be represented by a recognized agent. And that Advocates are recognized agents of a party for purposes of representation of a party before court”.
Counsel stated that Ssekabanja & Co. Advocates having represented Ogwang John Washington from the time of lodgment of MA 157/16, the subject of execution before this court, Ssekabanja & Co. Advocates retained authority to continue acting on his behalf unless expressly directed otherwise.
It was then submitted that the current Applicants have no locus whatsoever before this court. And in the circumstances, the application should be dismissed on that ground as well.
Further that, in the case of Shell (U) Ltd vs. Muwema Mugerwa Advocates & Solicitors & Uganda Revenue Authority (URA) SCCA 02/13 P.5, it was held that “the persons for whose benefit a representative suit had been lodged and prosecuted are described as beneficiaries and free riders”. This flows from the provisions of sub rule 2, rule 8 of 0.1 C.P.R.
In a representative action, the beneficiaries just wait for the outcome of the suit instituted by the representative on their behalf. That is why if the suit is lost, the beneficiaries cannot be condemned to pay costs.
Commenting on the orders sought by the Applicants, it was pointed out that one of the orders being sought and the basis of this application is that URA be directed to refund the decretal sum which should be debited out of the account indicated, held with the garnishee bank.
Counsel then argued that the kind of order was not tenable by court in so far as the account sought to be attachable. That it is not disputed that this is a tax collection account. And this is borne out by the affidavit filed by Haruna Mbeta and Patrick Sekiwala of 01.03.17 and filed in court on the same day on behalf of the Respondent.
Sekiwala Patrick refers to Annextures SP1 and SP2. SP1 is an authority to the Bank by URA to open a Revenue Collection Account with the bank.
SP2 is the agreement between URA and the Bank. Clause 6 of the agreement, Counsel contended, makes reference to the account for purposes of revenue collection and onward transmission to the Bank of Uganda. Clause 11, 13 and 14 of the agreement reinforces the fact.
That this is in line with S.14 Uganda Revenue Authority (URA) Act, Cap 196, which provides that all revenue collected by or due and payable to the Authority under the Act shall be credited or be due and payable to the consolidated fund.
And that once the money goes to the consolidated fund, it ceases to be URA’s money. Except that, URA can retain a bit of that money to use for its expenditure.
Non-attachment of the account was upheld in the case of Kampala International University vs. Steel Rolling Mills Ltd & URA & Attorney General MA 509/06 where Justice Egonda Ntende held that “…..the claim of the Government of Uganda on the funds in question has been amply established. I declare that the said funds are not liable to attachment. I set aside the order of attachment issued by the Registrar in this case”.
The application was dismissed.
Basing on all those grounds outlined above, Counsel prayed that the application be struck out, especially on the first ground and that the matter be dismissed with costs to URA.
The issue of costs he then stated, was left to court to determine.
Turning to the objections raised by the Applicants, Counsel submitted that the objections were without merit because the ground touching on the alleged falsity of the affidavit by URA goes into matters of evidence which cannot be determined on a preliminary objection, without the deponents being afforded opportunity to appear for cross examination.
Under 0.19 r 2 C.P.R where a party wishes to test the validity of a deponent to an affidavit, he can seek leave of court to cross examine the deponent.
That the submissions that particular paragraphs of the affidavit are false is submission from the Bar. And such submissions can only hold water if the deponents are produced and cross-examined on their deposition. But that this was not done.
It would therefore be unfair, Counsel stated, for court to uphold the argument that certain paragraphs of the affidavit are false, without the deponents being tested before court.
That paragraph 4 of Haruna Mbeta’s affidavit raises a factual issue that there was no representative order for the Applicants against URA. The Applicants should have produced a representative order if one existed.
In paragraph 8, Mbeta affirmed that Ogwang Washington through their Advocates realized that the Revenue Collection Account is not attachable. He further affirmed that, Ogwang Washington through the said Advocates consented to the decree being set aside, although Counsel for the Applicant claims that is false as Ogwang Washington was dead at the time of the consent.
However, Counsel for the Respondents argue that, the deponent/ affirmant was proving the point that, the legal representative of Ogwang John Washington who had ostensible authority to bind Ogwang John Washington discovered that the account was actually not attachable and hence the consent to have the attachment set aside. And this is why the Applicants think that consent should be set aside.
However that, Sekabanja & Co Advocates had instructions that subsisted until the Applicant’s withdrew and instructed a new Counsel. But that, whatever happened before the change of Advocates is binding on the Applicants.
The case of Muhammed & Kasasa vs. Jasper Buyonga, Sirasi Bwogi CACA 42/08 was cited in support. It was held that “a client is bound by the actions of his Counsel. And negligently drafting the plaint or incompetency in doing the same is not an excuse for a client to escape being bound by his Counsel’s actions”.
The holding relied upon the Supreme Courts position.
Therefore that, Sekabanja & Co. Advocates being officers of court came to the realization that the course taken against URA account was illegal and hence their action in the best interests of their clients by avoiding cementing an illegality that had already happened.
Also that, no action had been commenced against the said Firm for acting without instructions or negligence if any, before the Law Council or before Court.
That therefore paragraph 8 of Haruna Mbeta’s affidavit is very critical and does not contain any falsehoods as alleged in absence of a rebuttal by Sekabanja & Co. Advocates.
As to the contention in paragraph 12 of the same affidavit, that URA lied about filing the appeal, Counsel urged court to dismiss the contention stating that the affidavit was deponed on 19.03.17, and refers to the record of appeal lodged in the Court of Appeal and the memo. The appeal before court is No. 271/17 filed on 09.02.17.
That looking at the two dates; the conclusion is that Mbeta never lied about the fact.
And to state that by the date of the appeal, there was no consent is unacceptable, because by then there was a notice of appeal which under the Judicature Court of Appeal Rules commences an appeal. – Annexture HM3 is a notice of appeal lodged in the High Court on 19.09.16 and served on Sekabanja & Co. Advocates on 20.09.16.
Coupled with Annexture HMA requesting for the record, it means that at the time consent was entered, there was already a valid notice of appeal as per rule 76 of the Court of Appeal Rules.
That is why; the Counsel explained the consent made reference to a stay of execution in respect of the decretal sum “pending the determination of all matters at the Court of Appeal”. Therefore, parties knew there was an appeal before the Court of Appeal.
And that the consent was signed for the Applicant by Counsel Sekabanja Kato, a Senior Officer of Court. He appreciated the legal requirements for one to have a stay of execution pending an appeal to the Court of Appeal.
It was pointed out that Rule 85 of the Judicature Court of Appeal Rules allows for a stay of execution where the Applicant has complied with the requirements of rule 76. That is, filed a notice of appeal.
The consent was executed by the parties within the ambit of the law, Counsel asserted, with the knowledge of the Applicants.
Further that, it is not a legal requirement that once an instruction is given to Counsel, the client is obliged to sign on every process of court that Counsel is handling on his behalf. Otherwise, court would be handicapped in its quest to promote expeditious disposal of disputes.
And that, the authority relied upon by the Applicants did not refer to 0.3 C.P.R or distinguish the Supreme Court authority referred to. And it is not more binding than the one of the Supreme Court.
Also that, the Applicants have not protested to Sekabanja and no such evidence has been produced. Therefore that, the allegation of lack of instructions is an afterthought, made in bad faith and it cannot override the illegalities Sekabanja saw in the process.
The allegation that Sekabanja is a lawyer for KCB is of no legal consequence, Counsel argued. At the time of the consent, he was not acting for KCB but for Ogwang John Washington.
The allegations in cases listed where Sekabanja & Co. Advocates are alleged to have acted as Counsel for KCB can only be verified by the Bank or the said Advocates. Otherwise to depone to the effect, Counsel contended, remains hearsay because the First Applicant is not an employee of the Bank or of Sekabanja & Co. Advocates.
Counsel prayed court to allow the affidavit of Mbeta and Sekiwala Patrick on the ground that there is nothing severable after the Supreme Court ruling in Petition 01/01- Kiiza Besigye vs. Y.K. Museveni.
Going to the merits of the application, Counsel for the Respondents submitted that, to set aside a consent judgment, court must be satisfied that a ground that would compel court to set aside a valid contract exists. Such grounds include misrepresentation, fraud, or mistake, which are vitiating factors.
That looking at the motion, no fraud is indicated. What is alleged is duress. But none has been proved against the Applicants or against Sekabanja Kato. No affidavit has been deponed by him or the Bank. In law, they are separate from the Applicants.
Illegality – Counsel stated that it is alleged that consent was entered into even when execution was complete. However that, an illegality as was realized in the process would not have stood in the way of the consent.
Further that, the party alleging illegality is also not clean before court, as they attached an account that was not attachable and then turned around to cry foul that, it was wrong to set aside the attachment. According to the case of Makula International (Supra), it is illegal to reverse an illegality.
Commenting about the allegation that Ogwang was dead and therefore could not consent, Counsel admitted that it is true he was dead, but he died in August, 2016. But Sekabanja & Co. continued to conduct the case till December, 2016, when they prosecuted the application for execution.
Ogwang’s name remained on the pleadings and Counsel continued to act for his benefit even when he was dead, it was argued. No party was substituted. Even the decree absolute remained in his name as Counsel continued acting in the best interests of his client.
And that for the Applicants to turn around and argue that the same Advocates should not have acted for Ogwang at the time of the consent, is to play double standards. That could mean that, the entire execution process should not have continued in the names of a non-existent party.
That the argument is a double edged sword, Counsel contended. And court should find that the alleged illegality attributed to a consent executed at the time Ogwang was deceased does not hold. It is self defeating to the Applicants case if upheld.
Since there is no other grounds canvassed other than the two to set aside the consent, Counsel contended, court should be pleased to disallow the application.
Alternatively, but without prejudice to the preliminary objections and the submissions, Counsel prayed court to exercise its powers to stay the entire case and not determine it pending determination of the matters of law arising from the decree of Justice Nyanzi pending before the Court of Appeal, which has a close nexus to the one pending before the Supreme Court. - That is, URA vs. Siraji Hassan Kajura due for judgment any time soon.
The case of Centre for Public Interest Law vs. URA, Shell & Others was cited in support of the submissions.
In that case, Counsel stated, Justice Kiryabwire took cognizance of a pending appeal before the Supreme Court, which had cross cutting issues but with relevance to the matter before him. He stayed proceedings in the matter until the Supreme Court determined the case. And ultimately, the suit that had been stayed was decided by Justice Wangutusi in accordance with the pronouncement of the Supreme Court.
It was then prayed that court be pleased to stay the entire proceedings and determines it in accordance with what the Supreme Court decided in the case of URA vs. Kajura Hassan Siraji.
In rejoinder, Counsel for the Applicants relied to the preliminary objections raised by Counsel for the Respondent.
- Lack of date on the supporting affidavit: Counsel submitted that, it was a regrettable omission that the copy of Counsel for the Respondents was not dated. But that, it is the sole responsibility of the Commissioner of Oaths to ensure that affidavits are dated. S.5 of the Commissioner for Oaths Advocates Act requires every Commissioner of Oaths to state date and place where affidavit is sworn.
In the present case, only the affidavit of Counsel for the Respondent was not dated but all the others were dated. There is a stamp of the Commissioner of Oaths and the date is 17.01.17. Therefore that, the omission to date one copy of the affidavit should not vitiate the First Applicant’s affidavit. The case of Saggu vs. Road Master Cycles Ltd CA  IEA was relied upon. It was held in that case that “a defect in the Jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of Article 126 (2) (e) of the Constitution 1995”.
A Judge has power to order that an undated affidavit be dated in court or be re-sworn and penalize the offending party in costs.
It was then prayed that court orders Counsel for the Respondent’s copy to be dated in court, as the defect does not vitiate the affidavit. And that the objection be overruled.
- Lack of representative order for First Applicant to depone affidavit on behalf of the rest of the Applicants: It was submitted that, the case relied upon by Counsel for the Respondents is different from the present case. Court was urged to look at the affidavit of the First Applicant and note that he does not claim to swear it on behalf of others – Paragraphs 1 thereof. Therefore that, the case allied upon is not applicable and the objection should be dismissed with costs.
- Lack of representative order to prosecute application: Counsel contended that, the same objection was raised in the suit out of which this application arises. But it was later admitted that there was a representative order and court did not make any ruling on the objection.
And that since this application arises out of Civil Suit 455/2002 where there is a representative order, therefore the objection should be dismissed for lack of merit.
But that, even if there was no representative order, the Applicants who seek orders of this court to declare the impugned consent illegal, can in their own right sustain the application. The case of Ladah Abudallah Muhammed Hussein vs. Griffith Isingoma Kakiza & 2 Others SCCA 08/95 Odoki JSC was cited in support. It was held that “it may be that in a suitable case, a third party can apply for review under the inherent powers of court. But he can bring objection proceedings against execution or bring a fresh suit or file an application to set aside the decree or order”. In the lower court, the first order sought was for setting aside the consent judgment to the extent that it related to Plot 4B Acacia Avenue. The order for review was made an alternative prayer.
Counsel then submitted that, the current Applicants can invoke the inherent powers of court in seeking for a declaration that the impugned consent is illegal.
Also that in the case of Muhammed Alibhai vs. W.E Bukenya SCCA 56/96, court upheld the fact that “an aggrieved person can bring such application in their own right”.
It was then emphasized that, the Applicants need not have a representative order. The complaint is against the illegality of holding their benefits back. Anyone of them can move the court for the orders sought.
As regards the competence of the Applicants in instituting the application and that it ought to have been the administrator of Ogwang John Bosco’s estate or his Advocate to bring the application, Counsel argued that, the Applicants can sustain the application in their own right to ensure that the sanction of court orders is maintained.
And that, the Applicant’s former lawyer Sekabanja and Co. Advocates could not be assumed to have perpetual instructions from the Applicants. The Applicants are the persons best suited to prosecute the application and therefore 0.3 C.P.R is not applicable here. Sekabanja’s instructions ended when he received the benefits, Counsel added. What was left for him was to account to the Applicants and no further. He could not continue binding the Applicants in illegal transactions. The case of Kensington Africa Ltd vs. Stanbic Bank HCMA 824/12 where Lady Justice Helen Obura referred to the case Hudingson vs. Hudingson  ALLER was relied upon for the holding that “a party who knows of an order whether null or valid, regular or irregular cannot be permitted to disobey it. It would be most dangerous to hold that they or their solicitors could themselves judge whether the order was null or valid, whether regular or irregular. That they should not come to court and take it on themselves to determine such question”.
“That the cause of a party knowing of an order which is null or irregular and who may be affected by it was plain. As long as it existed it must not be disobeyed”.
Asserting that the Applicants’ former Advocates could not of themselves act behind the Applicants backs and enter into a detrimental consent, Counsel prayed for the objection to be overruled.
As regards the objection that the account was not attachable. It was submitted that Annextures SP1 and SP2 Sekiwala’s affidavit clearly show that URA requested for the accounts to be opened in its name.
And that S.2 (2) Uganda Revenue Authority Act creates URA as a Corporate Body. In its corporate status, it can hold such accounts, maintain them and deal with them. It cannot be allowed to run away from its corporate status. Doing so would be putting a clog on the essence of corporate entities.
The account can therefore be attached, Counsel insisted. Adding that the case of Kampala International University (Supra) is distinguishable from the circumstances here.
In that case, Counsel stated, the Government of Uganda paid the taxes for the benefit of Kampala International University; after Steel Rolling Mills failed to deliver all the steel. Kampala International University wanted to claim the taxes paid by Government.
The Attorney General objected and rightly so, since Government was not giving money to the plaintiff, it could not take away the money from URA. There is no such objection in the present case.
Also that a similar objection was raised in KCCA & 2 Others vs. Mugisha & 3 Others MA 290/2012. Lady Justice Elizabeth Musoke held that “with regard to the argument that the attached accounts were collection accounts, which though in the names of KCCA were operated by the Bank of Uganda and the Accountant General and were therefore not liable to attachment, I find that these were allegations which ought to have been proved by the Applicant through the Attorney General. I agree with the decision of the Registrar that since the garnishee had provided information regarding the impugned accounts to the effect that the accounts belong to KCCA, a garnishee order could be issued on that basis”.
In the present case, Counsel argued, the garnishee bank issued a statement of balance indicating that the accounts belong to URA. Therefore that, court should find that in absence of objection from the Attorney General, the accounts are attachable.
In rejoinder to the submissions, Counsel argued that it is a misstatement by Counsel for the Respondent to contend that for falsity of affidavits to be decided upon by court, the deponent must be cross examined.
A false statement can be seen on its face without need of cross-examination. And that reference to 0.19 r (2) C.P.R. is therefore a over stretch of purposes of cross-examination in an application.
Haruna Mbete’s affidavit paragraph 4 – it is a lie to state that Applicants never appeared to prosecute the suit. Record of proceedings was provided to prove the lie.
That contrary to what is stated in paragraph 8 of the said affidavit; Ogwang John Washington could not have realized that the accounts were not attachable as he was dead. Therefore that, the Applicants’ former lawyer could not associate their decision with the said Ogwang. They needed the express consent of the beneficiaries that was never obtained.
While Counsel for the Respondents claims there was a notice of appeal and therefore an appeal under r 17 of the Court of Appeal Rules, looking at the date of the impugned consent and the date of the memo of appeal, it is evident that there was no appeal at the time of the consent, Counsel argued.
Appeals in the Court of Appeal he added are instituted by memorandum of appeal and not by notice of appeal: court was urged to look at Rule 83- which provides for institution of appeal. Concluding that there was therefore a falsehood in paragraph 4.
Referring to paragraph 18, it was argued that, there was no express knowledge of consent by the Applicants to their former lawyers.
The Deponent’s statement is therefore hearsay and deliberately drafted to misled court.
Further that, without the Applicants’ signatures on the consent, their consent cannot be imputed. And without express attack of their contention that they did not grant consent, then their statement is a falsehood.
Also that, after the money went to the Applicants’ lawyers account, his obligation was to account to the Applicants but not to meddle with clients money as he pleased.
Counsel insisted that the objections to the Respondents affidavits should be upheld and the affidavits struck out with costs.
In rejoinder to the submissions in reply to the application, it was submitted that First Respondent misunderstood the application, which seeks for a declaration of court that the consent is null and void and should be set aside.
The grounds stated in the motion emphasis that execution was complete and the First Respondent with the Applicants’ former lawyers could not enter the impugned consent behind the Applicants’ back- case of Kensington (Supra) referred to.
Proposed stay of proceedings pending disposal of the Supreme Court case to which Applicants are not a party: It was reiterated that, by this application, the Applicants seek restoration of the sanctity of court orders, so as to enhance public confidence in court orders.
Counsel argued that, it would be an injustice to subject the Applicants to a waiting process after their rights were grossly abused by the First Respondent with the aid of the Applicants former lawyers, the prayer should be disallowed it was asserted.
Commenting about the case of Shell vs. Muwema (Supra), Counsel contended that, the Applicants in the present case are not by standers.
In Muwema’s case, it was pointed out; the other companies were contesting being required to pay costs to which they had not consented.
While in the present case, the Applicants seek to respect court orders. They are also beneficiaries and their benefits are being illegally held. They cannot therefore be dismissed as by standers.
Earlier prayers seeking application to be allowed with costs were maintained.
In rejoinder to the reply to the Preliminary objection, Counsel for the Respondent insisted that the affidavit was not dated. He admitted that it is true Article 126 2 (e) of the Constitution would apply, together with the authority cited Saggu (Supra). The authority, he stated, concludes that “the costs occasioned by such a defective affidavit should be paid to the party objecting”.
Dating the affidavit before court requires the Commissioner of Oaths before whom the affidavit was deponed but there is none before court. Therefore the submission requiring court to date the affidavit is without seriousness. And costs of the defective affidavit should be paid to URA.
Representative order: Lack of such order to prosecute a matter is fatal. The authorities cited by the Respondent were not distinguished by the Applicant.
The attack on the affidavit of Otim Talib is with respect to the fact that he had no authorization by the other Applicants to depone on their behalf. Counsel for the Applicants conceded that the affidavit was affirmed on his own behalf and not on behalf of the rest of the Applicants. Therefore, the application as it stands lacks evidence in so far as the rest of the Applicants are concerned. And therefore the authority of Runumi (Supra) is applicable. The application of the rest of the Applicants should therefore be dismissed. And the only Applicant remaining is Otim Talib.
But even then, he lacks capacity to prosecute case for lack of representative order. And that Counsel for the Applicants did not respond to the impact of 0.1 r 8 C.P.R. It was therefore prayed that the submissions of the Respondents in that regard be upheld. Otim Talib, it was emphasized, never sought leave of court to be a party to the suit brought by Ogwang John Washington. He and others remain beneficiaries to the suit and therefore cannot sue unless they seek leave to be made parties to the suit under 0.1 r 8 (2) C.P.R.
Counsel prayed that the objection be upheld, insisting that there was no representative order. If there was any, none was shown to court.
Also the representative order in Civil Suit 455/02-; it was argued that the suit was between the Attorney General and Ogwang John Washington and not URA.
In that suit, he stated, the representative order was given to sue the Attorney General. If he wished to sue URA, he ought to have obtained another representative order. The one for 2002 was specific to the Attorney General.
The authorities of Ladag (Supra) and Bukenya (Supra) relied upon by the Applicant are inapplicable for the following reasons, Counsel argued:-
- Ladag’s case dealt with review under S.82 CPA and 0.26 C.P.R.
The motion before court, it was pointed out, is not premised on either of the two laws.
Whereas in Ladag’s case, it was added, the Applicant had also sought to set aside alongside review of the consent order, the Applicants had been proper parties to the suit, unlike the present case where the Applicants are mere beneficiaries.
While the case of Muhammed principally dealt with review powers of the High Court, especially when a person aggrieved has moved court pursuant to 0.46 C.P.R.
The order was interpreted to the effect that “a none party can seek for review of the decision of court under 0.46 C.P.R”.
That since the current application is not for review, the order is inapplicable.
A person seeking to set aside, Counsel asserted, must have been a party under S.98 CPA, to the order or decree sought to be set aside.
The current Applicants, it was argued, in absence of a representative order cannot be regarded as proper parties having locus before this court in terms of the orders sought.
Competence of Applicants: the case of Kensington Africa Ltd (Supra) dealt with the issue of contempt of an interim order, Counsel stated. But even then, the Judge held that there was no contempt and dismissed application.
Since in the present case, court is not being moved to determine contempt of court orders, the authority is not relevant. The submission that a court order must not be disobeyed, as if one was disobeyed is inapplicable.
The current application it was insisted is not about the sanctity of court orders. The issue before court relates to a consent which in effect set aside a court order. And once a court order is set aside by court, there is no court order to write home about. The focus should be on consent, Counsel argued.
Had not the court order been set aside by consent of the parties, Counsel added, one would be justified to talk about any disobedience, if at all, of the subsisting order.
In the present case, it was asserted, the order was not disobeyed, it was simply set aside. Court was the urged to disregard the submission that the present application is designed to ensure maintenance of sanctity of court orders.
URA account being attachable or Tax Collection Account: It was submitted that S.2 URA Act:- URA being a corporate entity can own its own account.
But that court should look at S.2 (3) of the said Act- where it states that URA is an agent of Government…. And is responsible to Finance. The section, it was contended, in no way directs the powers given under S.14 URA Act, to URA to channel all revenues through an account opened for that purpose, for onward transmission to the consolidated fund.
It was further argued that, Counsel for the Applicants refrained from addressing the import of S.14 URA Act, and also from addressing court on the relevant clauses of the contract between URA and KCB.
Court was referred to the affidavit of Sekiwala and to the earlier submissions. It was then stated that, the sum total of the clauses in the agreement is that, the account is without doubt a cash revenue collection account and in line with the authority of Justice Egonda Ntende in the Kampala International University Case (Supra). The same is unattachable.
S.17 URA Act further buttresses the point that, URA is allowed to operate other accounts for the proper running of its affairs. These other accounts are distinct from the one intended under S.14 URA Act.
Lack of objection by the Attorney General: Counsel stated that the objection has been made and it is not necessary to require the Attorney General to object for URA.
And it is because of the earlier objections, it was added, that Sekabanja & Co. Advocates, acting on behalf of Ogwang John Washington saw the glaring illegality perpetrated by the execution proceedings against the collection account; hence the consent to avert the illegality in accordance with the principle in the case of Makula International (Supra) and as an Officer of Court.
Further that Sekabanja & Co. Advocates instructions were not assailed by the Applicants. Therefore that, court should find that the Advocates had instructions at all times to act for Ogwang John Washington and the same were only withdrawn when the current Advocates filed notice of change.
There is no evidence of Sekabanja & Co. Advocates, to collaborate theories placed before court by the Applicants that the firm lacked instructions to execute the consent.
The case of KCCA & 2 Others vs. Mugisha (Supra) was decided substantially in favor of the Applicant, in that court set aside execution proceedings against KCCA and ordered refund of the money illegally obtained, Counsel added. “A serious matter of illegality was brought to courts attention. Order nisi and order absolute were issued in a matter where there were no decrees”.
In the present case, the illegality was attaching the revenue collection account. Therefore that, the law required URA to first go to court and expose illegality to be set aside, when Ogwang consented after acceding to the illegality.
In the KCCA case, the court did not rule that the account was not attachable but that the status quo of the account had not been proved.
In the present case, that the Respondents has proved that this is a Tax Collection Account.
The cases aids URA it was asserted.
Statement of Balance by KCB to court: Counsel stated that the Respondents had not seen the copy of the statement (Annexture S2 to the rejoinder). Secondly that, at the time of the garnishee nisi attaching account, the matter was between KCB and Ogwang John Washington. By the nature of the proceedings, URA did not appear as it was not a party to the proceedings.
Annexture S2 of 19.12.16 not copied to URA, it is addressed to the Deputy Registrar of the Court. The documents show that the account is operational and active. It states the balance but did not explain on the nature of the account.
In light of the affidavit by Sekiwala and the memorandum of understanding (MOU) between KCB Bank and URA the correct position is as stated in the MOU, Counsel argued. Which displaces communication to the Registrar of Court.
Further that, the MOU and the affidavit of Sekiwala were not rebutted by KCB Bank a party to the current application. KCB respected the impugned consent and reversed the illegality that they had helped the Deputy Registrar to commit. That is, they had misled the Registrar of Court.
The earlier prayers that the preliminary objection be upheld and the application dismissed were reiterated.
Upon giving the submissions of both Counsel the best consideration, I can in the circumstances, the following issues are framed for determination.
- Whether the affidavits of the Respondents contain deliberate falsehoods and should be struck out.
- Whether the motion as presented is incurably defective for alleged lack of a supporting affidavit.
This issues raises sub issues:-
- Whether affidavit was deponed on behalf of others without authority to do so 0.1 r 12(1) and (2) C.P.R and should be struck out.
- Whether affidavits of Applicant is invalid and should be struck out for lack of a date when it was deponed.
- If so, whether the 2nd – 4th Applicants who did not depone any affidavit lack evidence to support the motion.
- Lack of representative order and whether application is incompetent and cannot be sustained and whether the suits from which application emanates were instituted and prosecuted without a representative order and therefore illegal 0.1 r 8 (2) C.P.R.
- Competence of the Applicants to institute this suit upon the demise of John Washington Ogwang without applying to become parties thereto under 0.1 r 8 C.P.R
- Whether interest of Ogwang John Washington in absence of valid letters of administration and permission to continue with suit could only be protected by his Advocate under 0.3 C.P.R.
- Whether the application should be allowed.
The issues will be dealt with in the order that they were set out.
Alleged False Affidavits: I have carefully looked at the paragraphs of the affidavits of the Respondents complained about. And while I agree with the principle of decided cases that “inconsistencies in affidavits cannot be ignored,…. if it contains an obvious falsehood, then it naturally becomes suspect”. – Bitaitana’s case (Supra).
However, later decisions by the Supreme Court have emphasized that “inconsistent facts of an affidavit are severable so that court can accept the rest”. – See the case Rtd Co. Dr. Kiiza Besigye vs. Electoral Commission & Another SCCA 01/2011.
It is also the finding of this court that Counsel for the Applicant ought to have cross examined the deponents of the Respondent’s affidavits if he wanted to prove that the alleged lies in the affidavits were deliberate.
The burden of proof was on the Applicants to prove that the Respondent were telling deliberate lies, since the inconsistencies can be severed, the objection is overruled on that account. – As pointed out by Counsel for the Respondent and rightly so, “where a party wished to test the veracity of a deponent to an affidavit, he can seek leave to cross examine the deponent”. – 0.19 r 2 C.P.R.
Whether the motion as presented is incurably defective for alleged lack of a supporting affidavit.
The application is supported by the affidavit of Otim Talib, one of the parties to the suit. Contrary to the submissions of Counsel for the Respondent; there is a date “17th” on the supporting affidavit although the month is not indicated. Since the application was filed on 19.01.17 and the same date of filing appears on the supporting affidavit, court will presume the affidavit was deponed on the 17th day of January, 2107. It was the duty of both Counsel for the Applicants and the Commissioner of Oaths to ensure that the month when the affidavit was sworn was indicated therein. The omission of Counsel for the Applicant and the Commissioner of Oaths should not therefore be visited on the Applicants. More so it clearly indicated that the motion was drawn on the 17.01.17.
The month can be inserted with the permission of court and its omission does not go to the essence of what is deponed in the affidavit. Refer to the case of Saggu vs. Roadmaster Cycles (U) Ltd – where it was held that “a defect in the jurat or any irregularity in the form of the affidavit cannot be allowed to vitiate an affidavit in view of article 126 (e) of the Constitution (1995). A judge has power to order that an undated affidavit be dated in court or that the affidavit be resworn and may penalize the offending party in costs”.
The objection on that account is therefore overruled.
Whether the affidavit was deponed on behalf of others without authority: As already indicated, the deponent of the affidavit is a party to the proceedings and the Chairman of the Uganda Spinning Former r Workers Committee and well conversant with the facts pertaining to the case. He swore the affidavit in that capacity. As Chairperson of the Committee, he has the authority to represent the others. There is a representative order dated 08.12.16 granting Otim Talib authority to represent the Former Workers of Uganda Spinning Millers Ltd… and or other claims incidental to and or arising from aforementioned cases.
The application also arises from Civil Suit 455/2002 which could not have been prosecuted on behalf of so many others without written authority to do so. And this court finds that the authority subsists until the suit and all applications arising there from are finalized.
In any case, each of the parties who has an interest in the matter has their individual interests to protect, and while the affidavit may be deponed by one of them, the resultant decision affects each one of them individually.
There is no required number of affidavits to support an application more so, if the would be deponents are going to be talking about the same thing. Failure to attach a representative order does not mean that the parties appearing did not get the permission of the court to sue on behalf of or for the benefit of all persons interested.- That is the spirit of 0.1 r 8 (1) C.P.R- “one person may sue or defend on behalf of all in the same interest”.
And under 0.1 r 9 C.P.R, “no suit shall be defeated by reason of the misjoinder or non-joiner of parties, and the court may in every suit deal with the matter in controversy as far as regards the rights and interests of the parties authority before it”
In any case “rules of procedure were meant to be handmaidens of justice but not to defeat it”.
The objections of Counsel for the Respondents are overruled for all those reasons.
The Applicants were competent to institute the application even after the death of John Washington Ogwang to protect their individual interests in the matter. – Article 126 (2) (e) of the Constitution. Any party who has a right and feels that the right has been infringed has a right to take up the matter before a court of law.
Even without the letters of Administration to the estate of the late John Washington Ogwang, the other parties had a right to appear in their personal capacities and or through their duly appointed representative Otim Talib which they have done.
Having dealt with the preliminary objections, court now proceeds to deal with the substance of the application. That is, to determine whether the consent entered into on 22.12.16 between the First Respondent should be declared null and void and should therefore be set aside.
I wish to state from the outset that, I am more persuaded by the arguments of Counsel for the Applicant in this respect.
It is not disputed by either of the parties in this case that execution was complete. The account of the Respondent was garnisheed and the money removed therefrom for the benefit of the Applicants. This was after the Garnishee Bank had appeared in court and provided information that the accounts belonged to URA (the Respondent). The accounts were therefore properly attached.
Although I take note of the argument of Counsel for the Respondent that the attached accounts were collection accounts which though in the names of URA were operated by Bank of Uganda and the Accountant General, and were therefore not available for attachment, the Respondent ought to have moved court to give them a chance to prove these allegations through the Attorney General and not through consent with the Applicant’s lawyers.
And this ought to have been after the Garnishee Bank informing the court that the account sought to be attached did not belong to the Respondent but to Bank of Uganda and the Accountant General. - Refer to 0.23 r 5 C.P.R.
The rule provides for claims by third parties, “whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order each third person to appear, and state the nature and particulars of his or her claim upon the debt”.
The court would then have summoned the Attorney General and the Accountant General under 0.23 r 6 C.P.R to hear the claim of the third person.
But that information was not given to the court by the garnishee.
Without that information being brought to the notice of the court, Counsel for the Applicants then had no right to reverse the order of court by consent without consulting his clients. – Refer also to the case of Unique Holdings Ltd vs. Business Skills Trust Ltd MA 402/12 Justice Madrama where it was held that “Garnishee order absolute or proceedings of a garnishee order can only be set aside upon application to set aside the order or proceedings under 0.23 r 7 C.P.R.
While the record indicates that the Respondent attempted to have the proceedings set aside- Annexture D- First Applicant’s affidavit, the application was withdrawn on the ground that it had been overtaken by events. The garnishee order absolute had already been honored by the Garnishee Bank.
In total disregard of the legal requirement, the former Counsel of the Applicant opted to consent with the Respondent without the Applicants’ knowledge. The consent purported to set aside the garnishee order absolute pending the disposal of an appeal- which had not yet been filed by the time the consent was signed on 22.12.16. The appeal was filed after the consent was entered and the money returned to the Garnishee Bank.
It is apparent from the circumstances of this case that the consent to set aside the garnishee order absolute was procured by collusion between the Applicants’ former Counsel and the Respondent.
This court finds that the endorsement of the consent to set aside the garnishee order absolute without the consent of the Applicants clearly constitutes an error involving a miscarriage of justice. It is on record that such consent from the Applicants was never sought and was therefore not given.
Binding the Applicants to the consent when their permission was not obtained by their former Counsel is a material mistake that vitiates the consent.
Counsel for the Respondent’s submission that consent to the return of the money was with the knowledge of Ogwang John Washington and other Applicants- paragraph 8 of Mbete’s affidavit; cannot be sustained since it is not disputed that Ogwang had by then passed away.
Further, Counsel for the Applicants then, ought to have consulted his clients before agreeing to the consent. Without any indication that such consultation was made and that the Applicants agreed to the settlement, the settlement cannot be binding upon the Applicants.
As has been laid down by decided cases, “parties consent to settlement cannot be presumed”.
Counsel for the Respondent argued that since Ogwang was dead, the consent could be entered into by the Applicants’ former Counsel as his “recognized agent” since none of Ogwang’s relatives has obtained letters of Administration. That argument too cannot hold. Courts have decreed that 0.3 r 2 C.P.R does not define the term “recognized agent” “to include parties’ Advocates; and neither does rule 1 of the same order mandate an Advocate to act on behalf of a party with the instructions”. – Refer to Tibaingana Godfrey vs. Kabwende Steven, Civil Revision No. 006/2012 (Arising from Nakasongola Civil Suit 16/2007) – Lady Justice Monica K. Mugenyi.
For all the reasons outlined in this ruling, this court finds that the inherent powers of the court provided for under S.98 CPA, can be invoked to set aside the consent for the ends of justice.
It was improper for former Counsel for the Applicants and the Respondents to use the purported consent to obtain a result detrimental to the interests of the Applicants without following the process of the law and in total disregard of a legitimate court order. In that sense, the consent amounted to abuse of court process and is a perversion of justice.
The consent is accordingly hereby declared to be null and void and is set aside.
The Respondent is directed to:-
- Refund the Shs. 1,034,442,861/- improperly returned to the Respondent by the Former Applicants’ Counsel within two weeks from the date of this ruling.
- The amount should include interest at the rate of 2% per month from 22.12.16 when the funds were returned until payment in full.
- The sums of money should be credited to Account 30004847 NC Bank, Bugolobi Branch in the names of Kasiisa & Co. Advocates (Clients) for the benefit of the Applicants.
- Costs of the application are also granted to the Applicants.
Refer to S.98 CPA- “Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of this court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court”.
FLAVIA SENOGA ANGLIN