Wakilii

Attorney General and Another v James Mark Kamoga and Another (Civil Appeal 8 of 2004)

Supreme Court · [2008] UGSC 4 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from a Court of Appeal decision that reversed a High Court order reviewing and setting aside a consent judgment
Decision
Appeal dismissed with costs to the respondents; the consent judgment stands

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Cited — treatment unverified cited in 8 (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 review jurisdiction over decisions made in High Court proceedings is vested in a judge, not the registrar, whose powers are circumscribed; an application for review on the ground of discovery of new matter may be made to any judge, so the trial judge did not err in entertaining the application and ground one succeeded. However, a consent decree is treated as a new contract and may be interfered with only where vitiated by fraud, mistake, misapprehension or ignorance of material facts. Counsel's ignorance that fraud had been pleaded in the amended defence was not ignorance of a fact material to the merits and did not vitiate consent. The appeal therefore substantially failed and was dismissed with costs.

Facts

The respondents sued the appellants and ten others for recovery of land, seeking a declaration that they held the freehold title. After the appellants twice amended their written statement of defence, counsel for the respondents and a Senior State Attorney for the appellants negotiated a settlement, and a consent judgment was signed and entered by the Deputy Registrar in September 2001. Roughly 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 had been challenged for fraud in the second amended defence. The High Court allowed the review and set aside the consent judgment. The Court of Appeal reversed, holding that the trial judge had no power to review a consent judgment entered by the registrar and that the appellants were not aggrieved parties. The appellants brought a second appeal to the Supreme Court.

Issues

  1. Whether a judge of the High Court had power to review a consent judgment entered by the 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.

Orders

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

Key headnotes

Review — Vesting of Review Jurisdiction — Powers of the Registrar
The power to review decisions made in High Court proceedings is vested in a judge of the High Court; the registrar, whose powers are circumscribed and delegated under Order 50 and Practice Direction No.1 of 2002, has no power of review, and rule 6 of Order 50 deeming the registrar a civil court does not create a court subordinate to the High Court.
Review — To Whom Application May Be Made — Order 46 rr.2 and 4
An application for review on the ground of discovery of new and important matter or evidence, or of a clerical or arithmetical error, may be made to any judge; only an application on some other ground must be made to the judge who passed the decree, and the prohibition in rule 4 applies only to that latter category.
Civil Procedure Rules — Order 9 r.12 — Ejusdem Generis — Scope Confined to Ex Parte Judgments
Order 9 rule 12, read by application of the ejusdem generis rule and in light of its headnote, applies only to ex parte judgments and not to consent judgments; the unfettered discretion it confers to set aside or vary judgments does not extend to consent judgments.
Consent Judgments — Treated as Fresh Contract — Grounds for Interference
A consent decree is passed upon a new contract between the parties and may be set aside or reviewed only where it is vitiated by a reason that would entitle a court to set aside an agreement, such as fraud, collusion, mistake, misapprehension, ignorance of material facts, or agreement contrary to the policy of the court.
Review — Aggrieved Party — Consent Decree
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.
Consent Judgments — Ignorance of Pleadings Not a Material Fact
The ignorance that vitiates consent must be ignorance of a fact material to the merits of the case; counsel's ignorance of what had been pleaded, such as an added plea of fraud already implied in an earlier pleading, is not ignorance of a material fact and does not warrant review or setting aside of the consent decree.
Abuse of Process and Technicalities — Article 126(2)(e) of the Constitution
Failure to adhere to a rule of procedure in instituting a case does not necessarily amount to an abuse of court process, which requires use of the process for an improper or unlawful object; dismissing an application on a procedural technicality where the judge in fact had jurisdiction takes undue regard of technicalities contrary to Article 126(2)(e) of the Constitution.

Legislation cited (12)

  • Civil Procedure Act s.82
  • Civil Procedure Act s.83
  • Civil Procedure Act s.98
  • Civil Procedure Act s.67
  • Civil Procedure Rules Order 9 r.12
  • Civil Procedure Rules Order 46 rr.1, 2, 4, 8
  • Civil Procedure Rules Order 50 rr.2, 4, 6
  • Judicature Act (Cap.13) s.6(1)
  • Judicature (Court of Appeal Rules) Directions rule 100(4) and (5)
  • Rules of the Supreme Court r.73
  • Constitution of Uganda Article 126(2)(e)
  • Advocates (Remuneration and Taxation of Costs) Rules

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 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.