Kayemba Kiiza v Ssenfuma and Another (Civil Appeal 20 of 2013)
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Holding
The Court of Appeal partly allowed the appeal. It held that a consent judgment is a contract between the parties that can only be set aside on grounds that would justify rescinding a contract, and that where it is set aside the proper course is to remit the suit for trial rather than determine it on the merits. The trial judge erred in determining the merits and ordering compensation after setting aside the consent judgment. However, the judge was entitled to review his own earlier order cancelling the registered proprietor's title, since that order had affected a third party who had not been heard. The compensation orders were set aside; the registered title was preserved subject to bona fide purchasers.
Facts
In 2001 the husband of the 2nd Respondent (Namayanja Hasifa) sold a plot of customary land to the Appellant, who built a house on it. The 2nd Respondent later sued the Appellant in the Masaka District Land Tribunal for trespass, and a consent judgment was entered in 2005 requiring the Appellant to pay UGX 3,000,000. After part payment, execution proceeded and the property reverted to the 2nd Respondent, who sold it to the 1st Respondent (Ssenfuma Dauda), who obtained registered title. The Appellant applied to the Chief Magistrate's Court to set aside the consent judgment, which was done. The 2nd Respondent sought revision in the High Court (Misc. App. No 2 of 2011), where the consent judgment was set aside and the title ordered rectified. The 1st Respondent, not having been heard, applied to review that ruling (Misc. App. No 32 of 2011); the High Court set aside its earlier orders and awarded the Appellant UGX 5,000,000 compensation, prompting this appeal.
Issues
- Whether it was proper for the trial judge to hear the 1st Respondent's application for review.
- Whether the application for review was barred by res judicata and by the rule against review of a reviewed judgment.
- Whether the trial judge applied the correct principles in setting aside a consent judgment and in awarding compensation.
- Whether the trial judge erred in failing to award costs to the Appellant.
Orders
- Appeal allowed in part.
- The judgment of the High Court is set aside and substituted with this judgment.
- The orders of the High Court in Miscellaneous Application No 2 of 2011 were set aside and that order is affirmed.
- The orders in Miscellaneous Application No 32 of 2011 are set aside.
- Under section 11 of the Judicature Act, the certificate of title for Buddu Block 323 Plot 344 registered in the names of Senfuma Dauda on 27th January 2006 shall remain so registered and the registry shall be rectified to reflect that registration unless the property has been transferred to a bona fide purchaser for value.
- Any party is at liberty, subject to the law of limitation, to bring a fresh suit against any appropriate party before a court of competent jurisdiction.
- Each party shall bear its own costs of the appeal.
Key headnotes
Legislation cited (8)
- Civil Procedure Act Cap 71 s.7
- Civil Procedure Act Cap 71 s.82
- Civil Procedure Act Cap 71 s.83
- Civil Procedure Rules Order 46 rule 7
- Judicature Act s.11
- Land Act s.95(7)
- Constitution of Uganda Article 133(1)(b)
- Practice Direction No. 1 of 2006
Cases cited (7)
- Kajuka v Kananura (Civil Appeal No. 42 of 2014)
- Edison Kanyabwera v Pastori Tumwebaze (Civil Appeal No. 6 of 2004)
- Brooke Bond (T) Ltd v Mallya [1975] EA265
- Hirani v. Kassam (EACA), 19 E.A.C.A. 131
- Hassanali v City Motor Accessories Ltd and Others [1972] EA 423
- Purcell v F C Trigell Ltd (trading as Southern Window and General Cleaning Co) and another [1970] 3 All ER 671
- Huddersfield Banking Co. Ltd v Henry Lister & Son Ltd (1895) 2 Ch D page 273