Wakilii

Sserwanga Sulaiman v Naitazzi Rebecca (Civil Appeal No. 128 of 2020)

Court of Appeal · [2025] UGCA 341 · 2025 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court (Family Division) decision dismissing an application to set aside a consent decree and reinstate the original suit
Decision
Appeal dismissed; the High Court decree in Civil Suit No. 71 of 2009 varied to correct a clerical omission so that it conforms to the recorded consent judgment.

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Holding

The Court of Appeal held that the decree in Civil Suit No. 71 of 2009 was a valid consent judgment, recorded by the trial judge in the presence of the parties who acknowledged their agreement to the settlement formula. A consent judgment is treated as a fresh contract and may be set aside only on grounds of fraud, collusion, mistake, misapprehension or contravention of public policy. The appellant, who was present when the decree was endorsed despite his counsel's absence, neither pleaded nor proved any such ground. The earlier judge's admission concerned only a clerical discrepancy between the decree and the consent judgment, not its validity. A respondent's failure to reply does not, without proof, entitle an applicant to relief. The appeal was dismissed and the decree varied to correct the clerical error.

Facts

The appellant filed Civil Suit No. 71 of 2009 seeking revocation of letters of administration granted to the respondent over the estate of the late Nambooze Esther Matovu, alleging that the grant was procured fraudulently and that the respondent had misappropriated estate property. During proceedings before Lugayizi, J., the parties agreed to settle the matter through mediation. On 11 October 2011, with the appellant, the respondent, the respondent's counsel and three mediators present, the trial judge recorded a settlement formula for sharing the deceased's property, which the parties acknowledged, and a consent decree was endorsed the same day. The appellant's counsel was absent that day, but the appellant was present and raised no objection nor sought an adjournment. The appellant later applied to stay execution (dismissed) and to set aside the decree, contending that neither he nor his counsel consented to or signed it. Matovu, J. dismissed the set-aside application. Justice Lugayizi had written that the final decree did not read exactly the same as the consent judgment, an error he was willing to correct. The appellant appealed.

Issues

  1. Whether the decree in Civil Suit No. 71 of 2009 was irregular or a valid consent judgment arising from the agreement of the parties.
  2. Whether the appellant established any of the grounds on which a consent judgment may be set aside.
  3. Whether the trial judge erred in failing to consider that the earlier judge had admitted error in the decree and was willing to correct it.
  4. Whether the respondent's failure to reply to the application amounted to an admission entitling the appellant to the relief sought.

Orders

  • The High Court decree in Civil Suit No. 71 of 2009 is varied by inserting the clause: 'The property the deceased held jointly with Matovu should be shared as follows: the plaintiff should only share in her mother's portion but not in Matovu's portion; the defendants will share in both portions.'
  • The appeal is dismissed.
  • No order as to costs, the appeal arising from a family cause.

Key headnotes

Civil Procedure — Consent Judgments — Validity — Recording of consent in open court
A trial judge may validly record a consent judgment where the parties signify their agreement to settle before the court, and the absence of a formal written consent agreement or of counsel's signature does not negate the existence of a binding consent judgment.
Civil Procedure — Consent Judgments — Setting Aside — Required grounds
A consent judgment is treated as a fresh contract between the parties and may be set aside only on grounds of fraud, collusion, mistake, misapprehension, ignorance of material facts, or an agreement contrary to the policy of the court, each of which the party seeking to set it aside must specifically plead and prove.
Civil Procedure — Consent Judgments — Party bound despite absence of advocate
A party who is present in court when a consent judgment is recorded, and who neither objects nor seeks an adjournment, is bound by the proceedings notwithstanding the absence of his advocate on that day.
Civil Procedure — Decrees — Correction of clerical error distinguished from irregularity
A discrepancy between the extracted decree and the consent judgment as recorded is a correctable clerical error under section 82 of the Civil Procedure Act and does not render the decree irregular or invalid.
Civil Procedure — Ex parte proceedings — Effect of respondent's failure to reply
A respondent's failure to file a reply or to appear does not create an adverse presumption against him nor automatically entitle the applicant to the relief sought; the applicant retains the burden of proving the facts alleged.

Legislation cited (9)

  • Judicature Act Cap 13 s.10
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.100(3)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.32(1)
  • Civil Procedure Act Cap 282 s.82
  • Evidence Act Cap 8 s.101
  • Evidence Act Cap 8 s.102
  • Constitution of Uganda 1995 art.126(2)(e)

Cases cited (11)

  • Hirani v Kassam (1952) EACA 131
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Anor (Civil Appeal No. 4 of 1981)
  • Edith Nantumbwe & 3 Ors v Miriam Kuteesa (Civil Appeal No. 294 of 2013) [2013] UGCA 23
  • Rev. Bakaluba Peter Mukasa v Betty Nambooze Bakireke (Supreme Court Civil Appeal No. 4 of 2009)
  • Departed Asians Property Custodian Boatd Vs Issa Bukenya Trading as New Mars House, [1994-95] HCB at 6O
  • Prof. Oloka Onyango & Others v Attorney General (Constitutional Petition No. 6 of 2013)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Brooke Bond Liebig (T) Ltd v Mallya (1975) EA 266
  • Attorney General & Uganda Land Commission v James Mark Kamoga & Anor (Supreme Court Civil Appeal No. 1 of 2004)
  • Mohamed Allibhai v W.E. Bukenya & Anor (Civil Appeal No. 56 of 1996)
  • Minister of Police v Michillies [2023] ZANWHC 90
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.