Yahaya Walusimbi V Justine Nakalanzi & 4 Others (Misc. Application No. 386 of 2018)

Court of Appeal · [2019] UGCA 237 · 2019 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion to set aside the Court of Appeal's own judgment in a civil appeal on grounds of fraud and newly discovered evidence

Decision

Application to set aside the Court of Appeal judgment dismissed; applicant at liberty to apply to the trial court regarding fresh evidence

The full judgment

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Holding

The Court held that its inherent power under rule 2(2) of the Rules of the Court of Appeal to set aside a judgment extends only to judgments proved to be null and void after they were passed, and that the discovery of new important evidence is not a ground for setting aside a judgment. To set aside a judgment for fraud, the fraud must be proved strictly, the judgment must be based on that fraud, and the order must be necessary to achieve justice or prevent abuse of process. As the alleged fraud was unproved and could not be established by affidavit evidence, the application failed. The Court distinguished Orient Bank v Zaabwe and dismissed the application with no order as to costs.

Facts

Jackson Musoke Kakayira sued in the High Court (HCCS No. 119 of 1999) as a beneficiary of the estate of his late father, Erisa Musoke, who had bought 6.33 acres at Kalerwe from the late Tito Lukanika under a 1932 agreement. No transfer was effected, so Erisa lodged a caveat; his son later lodged further caveats. In 1994 Rosemary Nalubega, a granddaughter of Tito Lukanika, obtained letters of administration, removed the caveats and sold part of plot 584 to the applicant, Yahaya Walusimbi. The trial judge found fraud on the applicant's part and entered judgment for the estate. The applicant's appeal (Civil Appeal No. 40 of 2004) was dismissed. The applicant then alleged the 1932 sale agreement was forged, relying on a handwriting expert and a conviction of the original plaintiff and another for uttering a false document, and applied to set aside the Court of Appeal judgment on grounds of fraud and newly discovered evidence.

Issues

Whether the Court of Appeal can set aside its own judgment under its inherent power on the ground of newly discovered evidence.
Whether the alleged fraud in procuring the judgment was proved so as to justify setting aside the judgment under rule 2(2) of the Rules of the Court of Appeal.

Orders

Application to set aside the judgment in Civil Appeal No. 40 of 2004 dismissed.
No order as to costs.
The applicant is at liberty to apply to set aside the judgment and decree and re-hear the matter in the trial court in respect only of the fresh evidence.

Key headnotes

Civil Procedure — Setting Aside Judgments — Inherent Power Under Rule 2(2) Court of Appeal Rules

The inherent power of the Court of Appeal under rule 2(2) of its Rules to make orders necessary for the ends of justice extends only to setting aside judgments that have been proved to be null and void after they were passed.

Civil Procedure — Newly Discovered Evidence — Not a Ground to Set Aside Appellate Judgment

The discovery of new important evidence after judgment cannot be a ground for setting aside a judgment of the Court of Appeal; the appropriate course is to apply to adduce fresh evidence in the trial court.

Civil Procedure — Setting Aside Judgment for Fraud — Conditions

Before a court will set aside a judgment for fraud under its inherent power, three conditions must be satisfied: the fraud must be proved strictly, the judgment must be based on that fraud, and the order must be necessary to achieve the ends of justice or prevent abuse of court process.

Evidence — Proof of Fraud — Inadequacy of Affidavit Evidence

Allegations of fraud must be proved strictly and cannot be established by affidavit evidence alone.

Legislation cited (2)

Rules of the Court of Appeal r.2(2)
Rules of the Court of Appeal r.43

Cases cited (2)

Orient Bank Ltd v Fredrick Zaabwe and Another (Civil Application No. 17 of 2007)
Livingstone Sewanyana Vs Martin Aliker (supra)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.