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Attorney General and Uganda Land Commission v James Mark Kamoga and Another (Civil Appeal No. 8 of 2004)

Supreme Court · [2008] UGSC 34 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision reversing the High Court's review and setting aside of a consent judgment.
Decision
Appeal dismissed with costs; the Court of Appeal's reversal of the High Court's review stood in result, though on different reasoning.

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Holding

The Supreme Court held that the High Court judge had power under Order 46 to review the consent judgment entered by a registrar: an application grounded on discovery of new and important matter may be made to any judge, and as the registrar had no review powers the rule 4 prohibition did not apply. However, a consent decree is treated as a fresh contract and may be set aside only where vitiated by fraud, illegality, mistake, misapprehension or ignorance of material facts. Counsel's ignorance of fraud pleaded in the amended defence was not ignorance of a fact material to the merits, so the consent was not vitiated. The appeal substantially failed and was dismissed with costs.

Facts

The respondents sued the two appellants (and ten other persons) for a declaration that they were the freehold owners of land, part of which the 1st appellant held on lease and other parts of which the 2nd appellant had leased to the ten persons. The appellants defended and twice amended their Written Statement of Defence; the second amended WSD (15 September 2000) added particulars alleging the respondents' title was acquired through fraud. Counsel for the parties negotiated a settlement, and on 31 August 2001 signed a consent judgment, entered by the Deputy Registrar, declaring the respondents entitled to terminate the 1st appellant's lease and that the 2nd appellant had unlawfully granted leases over the respondents' freehold land. About six months later the appellants applied to review and set aside the consent judgment, contending that the Senior State Attorney who consented (Joseph Matsiko) was unaware the respondents' title had been challenged for fraud. The High Court allowed the review and set the consent judgment aside; the Court of Appeal reversed that decision.

Issues

  1. Whether a High Court judge has power to entertain an application for review of a consent judgment entered by a registrar.
  2. Whether a party who consented to a decree can be an 'aggrieved' party entitled to apply for review under Order 46.
  3. Whether there was sufficient reason to review or set aside the consent judgment, namely whether counsel's ignorance of fraud pleaded in the amended defence vitiated the consent.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents in the Supreme Court and in the courts below.

Key headnotes

Civil Procedure — Review — Vesting of Review Jurisdiction
An application for review of a decree upon the ground of discovery of new and important matter or evidence may be made to any judge of the court, and is not confined to the judge who passed the decree; the requirement that an application be heard by the judge who passed the decree applies only to applications on grounds other than newly discovered matter.
Civil Procedure — Review — Powers of a Registrar
A registrar of the High Court exercises only such jurisdiction as is delegated to him and has no power of review under Order 46; consequently the rule 4 prohibition does not bar a judge from reviewing a consent judgment entered by a registrar.
Civil Procedure — Consent Judgments — Grounds for Setting Aside
A consent decree is passed on the terms of a fresh contract between the parties and may be interfered with only where it is vitiated by a reason that would enable a court to set aside an agreement, such as fraud, collusion, mistake, misapprehension, ignorance of material facts, or contravention of court policy.
Civil Procedure — Review — Aggrieved Party
A party against whom a consent decree is passed may, notwithstanding the consent, be an 'aggrieved' party within the meaning of Order 46 where the consent was induced through illegality, fraud or mistake.
Civil Procedure — Consent Judgments — Ignorance of Material Facts
The ignorance that vitiates consent must be ignorance of a fact material to the merits of the case; counsel's ignorance of what was pleaded in an amended defence is not ignorance of a material fact and does not justify review or setting aside of a consent judgment.
Statutory Interpretation — Civil Procedure Rules — Order 9 r.12 and the Ejusdem Generis Rule
Applying the ejusdem generis rule, the judgments entered by a registrar under Order 50 that may be set aside under Order 9 r.12 are those similar to ex parte judgments; the unfettered discretion under that rule does not extend to consent judgments, which may be set aside only on limited grounds.
Civil Procedure — Appeals — Right of Second Appeal
A respondent who loses an appeal heard in his absence is not required to first apply for a rehearing under rule 100(4) and (5) of the Court of Appeal Rules before exercising the right of appeal to the Supreme Court under section 6(1) of the Judicature Act; those provisions are permissive, not mandatory, and do not impose a condition precedent to the right of appeal.

Legislation cited (20)

  • Civil Procedure Act s.82
  • Civil Procedure Act s.83
  • Civil Procedure Act s.98
  • Civil Procedure Act s.99
  • Civil Procedure Act s.67
  • Civil Procedure Rules Order 9 r.12
  • Civil Procedure Rules Order 46 r.1
  • Civil Procedure Rules Order 46 r.2
  • Civil Procedure Rules Order 46 r.4
  • Civil Procedure Rules Order 46 r.8
  • Civil Procedure Rules Order 50 r.1
  • Civil Procedure Rules Order 50 r.2
  • Civil Procedure Rules Order 50 r.4
  • Civil Procedure Rules Order 50 r.6
  • Judicature Act (Cap. 13) s.6(1)
  • Rules of the Supreme Court r.73
  • Judicature (Court of Appeal Rules) Directions r.100(4)
  • Judicature (Court of Appeal Rules) Directions r.100(5)
  • Constitution of Uganda Article 126(e)
  • Practice Direction No. 1 of 2002

Cases cited (9)

  • Nicholas Roussos v G.H. Wrani and Another (Civil Appeal No. 9 of 1993)
  • Ladak Abdulla Mohamed Hussein v Griffiths Isingoma Kakiiza and Others (Civil Appeal No. 8 of 1995)
  • Ddegeya Trading Stores (U) Ltd v URA (Civil Appeal No. 44 of 1996)
  • Mbogo v Shah (1968) EA 93
  • Hirani v Kassam (1952) EA 131
  • Brooke Bond Liebig (T) Ltd v Mallya (1975) EA 266
  • Mohamed Allibhai v W.E. Bukenya and Another (Civil Appeal No. 56 of 1996)
  • David Sejjaaka Nalima v Rebecca Musoke (Civil Appeal No. 12 of 1985)
  • Petro Sonko and Another v H.A.D. Patel and Another (1955) 22 EACA 23
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.