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

Supreme Court · [2008] UGSC 39 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal, arising from a High Court application to review a consent judgment entered by the Deputy Registrar
Decision
Appeal dismissed; the Court of Appeal's dismissal of the review application upheld in result though for different reasons

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Holding

The Supreme Court held that review jurisdiction under section 82 of the Civil Procedure Act and Order 46 applies to consent judgments, and that the High Court judge had power to entertain the review because the registrar who entered the consent judgment had no power to review it (so the Order 46 r.4 prohibition did not apply); it also held that a party can be aggrieved by a decree it consented to. However, a consent decree, being a fresh contract, may be set aside only on limited grounds, and counsel's ignorance of what was pleaded is not ignorance of material facts. Fraud having been sufficiently implied in the earlier defence, no such ground existed. The appeal was accordingly dismissed.

Facts

The respondents sued the Attorney General, the Uganda Land Commission and ten others, seeking a declaration that they were the lawful freehold owners of land partly leased to the first appellant and partly leased by the second appellant to others. Counsel for the appellants, Joseph Matsiko, negotiated and signed a consent judgment, entered by the Deputy Registrar in September 2001, conceding the respondents' freehold title. Nearly six months later the appellants applied to the High Court to review and set aside the consent judgment, contending that Matsiko had consented while unaware that the respondents' title had been challenged for fraud in the second amended written statement of defence, which was on a different file. The respondents replied that fraud had already been sufficiently implied in the first amended defence, which Matsiko had perused, and that the consent followed a compromise. The High Court allowed the review; the Court of Appeal reversed, holding the judge had no power to review a registrar's consent judgment.

Issues

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

Orders

  • First ground of appeal upheld.
  • Grounds 2 and 3 dismissed.
  • Appeal dismissed.
  • Costs awarded to the respondents in the Supreme Court and in the courts below.

Key headnotes

Civil Procedure — Review and Revision — Distinction between review (CPA s.82) and revision (CPA s.83)
Revisional jurisdiction under section 83 of the Civil Procedure Act applies only to decisions of magistrates' courts subordinate to the High Court, whereas review jurisdiction under section 82 empowers the High Court to review its own decisions; the two jurisdictions rest on different conditions and principles and an analogy between them is misplaced.
Statutory Interpretation — Ejusdem generis — Order 9 rule 12 of the Civil Procedure Rules
Applying the ejusdem generis rule, the power under Order 9 rule 12 to set aside a judgment entered by the registrar extends only to ex parte judgments of the kind passed under the preceding rules, and not to consent judgments, which are treated as fresh agreements and set aside only on limited grounds.
Civil Procedure — Review — Applicability to consent judgments
Review jurisdiction under Order 46 of the Civil Procedure Rules is applicable to all decrees, including consent decrees, the provisions of Order 46 rule 1 being broad enough to cover them.
Civil Procedure — Review — Forum for application under Order 46 rr.2 and 4
An application for review founded on the discovery of new and important matter or evidence, or on a clerical or arithmetical error, may be made to any judge; the requirement in Order 46 rules 2 and 4 that the application be heard by the judge who passed the decree applies only to applications brought on other grounds.
Civil Procedure — Registrar — Powers do not include review
A registrar of the High Court exercises only such jurisdiction as is delegated by or under legislation; the power to review judgments or orders of the High Court is not among those powers, so a judge may entertain an application to review a judgment entered by a registrar without breaching the Order 46 rule 4 prohibition.
Civil Procedure — Consent judgments — Aggrieved party
A party against whom a consent decree is passed may, notwithstanding the consent, be an aggrieved person within the meaning of Order 46 where the consent was induced through illegality, fraud or mistake.
Contract Law — Consent decrees — Grounds for setting aside
A consent decree is passed on the terms of a new contract between the parties and may be interfered with only where it is vitiated by a ground that would enable a court to set aside an agreement, such as fraud, collusion, agreement contrary to court policy, or consent given in misapprehension or ignorance of material facts; counsel's ignorance of what was pleaded in the defence is not ignorance of a fact material to the merits and does not vitiate consent.

Legislation cited (16)

  • Civil Procedure Act s.82
  • Civil Procedure Act s.83
  • Civil Procedure Act s.98
  • Civil Procedure Act s.67
  • Civil Procedure Act s.99
  • 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
  • Civil Procedure Rules Order 50 r.6
  • Judicature Act (Cap. 13) s.6(1)
  • Constitution of Uganda Article 126(e)
  • 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)

Cases cited (9)

  • Nicholas Roussos v G.H. Virani 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 Maliya (1975) EA 266
  • David Sejjaka 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
  • Mohamed Allibhai v W.E. Bukenya and Another (Civil Appeal No. 56 of 1996)
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