Walusimbi v Nakalanzi & 4 Ors (Misc. Application No. 386 of 2018)

Court of Appeal · [2019] UGCA 337 · 2019 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion to set aside a final judgment of the Court of Appeal (and the underlying High Court judgment) on grounds of fraud and discovery of new evidence

Decision

Application to set aside the Court of Appeal judgment dismissed; applicant left at liberty to apply to set aside the High Court judgment on the 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 after it has been passed extends only to judgments proved to be null and void, and that the discovery of new important evidence is not by itself a ground for setting aside a judgment. The power to set aside for fraud requires that the fraud be strictly proved, that the judgment be based on that fraud, and that the order be necessary to achieve the ends of justice. The alleged fraud was not proved and could not be proved by affidavit evidence. The application was dismissed, with the applicant at liberty to apply to set aside the High Court judgment and seek a re-hearing on the fresh evidence.

Facts

Jackson Musoke Kakayira sued in the High Court (Civil Suit No. 119 of 1999) as a beneficiary of the estate of his late father, Erisa Musoke. Erisa had bought 6.33 acres at Kalerwe from the late Tito Lukanika under a 1932 sale agreement, but no transfer was effected, so Erisa lodged a caveat to protect his interest; further caveats were lodged after his death. 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 against the applicant and entered judgment for the plaintiff; the applicant's appeal (Civil Appeal No. 40 of 2004) was dismissed in 2004. The applicant later reported the 1932 agreement to police; a handwriting expert found it forged, and the original plaintiff and another were convicted of uttering a false document. On that basis the applicant applied to set aside the Court of Appeal's judgment.

Issues

Whether the Court of Appeal may exercise its inherent power under Rule 2(2) to set aside its own judgment on the ground that new evidence (allegedly showing forgery) was discovered after the judgment was passed.
Whether the alleged fraud in procuring the judgment was strictly proved so as to justify setting aside the judgment.

Orders

Application to set aside the judgment in Civil Appeal No. 40 of 2004 dismissed.
No order as to costs.
Applicant at liberty to apply to set aside the High Court judgment and decree and re-hear the matter in respect only of the fresh evidence.

Key headnotes

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

The inherent power of the Court of Appeal under Rule 2(2) of its Rules to set aside a judgment after it has been passed extends only to judgments proved to be null and void; the subsequent discovery of new important evidence is not a ground for setting aside the court's judgment.

Civil Procedure — Setting Aside Judgments for Fraud — Conditions

A court may set aside its own judgment for fraud only where three conditions are satisfied: the fraud is strictly proved, the judgment is based on that fraud, and the order is necessary to achieve the ends of justice or prevent abuse of court process.

Evidence — Proof of Fraud — Inadequacy of Affidavit Evidence

Fraud must be strictly proved and cannot be established by affidavit evidence alone; where fresh evidence of fraud is sought to be relied upon, the appropriate course is to apply to adduce that evidence in the trial court.

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.