Wakilii

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

Supreme Court · [2008] UGSC 35 · 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 grant of an application to review and set aside a consent judgment
Decision
Appeal dismissed; the consent judgment stands and costs awarded to the respondents here and in the courts below

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court held that a respondent who loses an ex parte appeal retains an unqualified right of appeal under s.6(1) of the Judicature Act. A registrar exercises only delegated jurisdiction and has no power of review, so the Order 46 rule 4 prohibition did not bar a High Court judge from reviewing a consent judgment entered by a registrar; the judge therefore had jurisdiction, and a party who consents may nonetheless be aggrieved. However, a consent judgment is treated as a new contract and may be set aside only on limited grounds such as fraud, mistake or misapprehension of material facts. Counsel's ignorance of a fraud plea already implied in the earlier amended defence was not ignorance of a material fact, so no vitiating ground existed. Appeal dismissed.

Facts

The respondents sued the two appellants and ten other persons seeking a declaration that they were the freehold owners of land, part of which was held under a lease from the first appellant and other parts leased out by the second appellant. The appellants defended and amended their Written Statement of Defence twice. Counsel for the respondents and the appellants then negotiated a settlement, and a consent judgment was signed and entered by the Deputy Registrar in September 2001, declaring the respondents entitled to terminate the first appellant's lease and re-enter, and that the second appellant had unlawfully granted leases over the freehold. Nearly six months later the appellants applied to the High Court to review and set aside the consent judgment, contending that the State Attorney who consented, Joseph Matsiko, had been unaware that the respondents' title was challenged for fraud in the second amended defence. Fraud had, however, in substance already been pleaded in the first amended defence, which Matsiko perused before consenting. The High Court allowed the review and set the consent judgment aside; the Court of Appeal reversed, holding the judge had no power to review and the appellants were not aggrieved.

Issues

  1. Whether the appeal was incompetent for failure to transmit the Notice of Appeal to the Supreme Court under rule 73.
  2. Whether the appellants were precluded from bringing a second appeal by failing to apply for a rehearing in the Court of Appeal under rule 100(4) and (5).
  3. Whether a High Court judge had power to entertain an application for review of a consent judgment that had been entered by a registrar.
  4. Whether a party who consents to a decree can be a person aggrieved entitled to apply for review under Order 46.
  5. Whether there was a sufficient or vitiating ground to review or set aside the consent judgment.

Orders

  • Appeal dismissed.
  • Costs of the appeal and in the courts below awarded to the respondents.

Key headnotes

Civil Procedure — Appeals — Right of Second Appeal After Ex Parte First Appeal
A respondent who loses an appeal heard in his absence retains the unqualified right of appeal to the Supreme Court under section 6(1) of the Judicature Act; the permissive rehearing provisions of rule 100(4) and (5) of the Court of Appeal Rules are not a condition precedent to that right.
Civil Procedure — Abuse of Process — Failure to Follow Procedure
Failure to adhere to a rule of procedure in instituting a case does not by itself amount to an abuse of court process; abuse requires use of the process for an improper or unlawful object for which it was not established.
Civil Procedure — Review — Vesting of Jurisdiction Under Order 46
An application for review on the ground of discovery of new and important matter or evidence may be made to any judge; the prohibition in Order 46 rule 4 confining review to the judge who passed the decree applies only to applications brought on other grounds.
Civil Procedure — Registrar's Powers — Absence of Review Jurisdiction
A registrar of the High Court exercises only such jurisdiction as is delegated by or under legislation and has no power to review judgments; consequently the Order 46 rule 4 prohibition does not bar a judge from reviewing a consent judgment entered by a registrar.
Contract Law — Consent Judgments — Grounds for Setting Aside
A consent judgment is treated as a new contract between the parties and may be set aside or reviewed only on limited grounds such as illegality, fraud, mistake, misapprehension of material facts or contravention of court policy.
Civil Procedure — Review — Aggrieved Party and Materiality of Facts
A party who consents to a decree may nonetheless be aggrieved where consent was induced by illegality, fraud or mistake; but the ignorance that vitiates consent must be ignorance of a fact material to the merits, and ignorance of what was pleaded, where the same matter was already implied in an earlier pleading, is not such a material fact.
Civil Procedure — Substantive Justice — Article 126(2)(e) of the Constitution
Where a court has jurisdiction to grant the relief sought, dismissing an application merely because it was brought under the wrong procedure gives undue regard to technicalities contrary to Article 126(2)(e) of the Constitution.

Legislation cited (15)

  • Judicature Act (Cap. 13) s.6(1)
  • 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 50 r.2
  • 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(2)(e)

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.