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Betuco (U) Ltd & Anor v Barclays Bank of Uganda Ltd & 3 Ors

Supreme Court · [2018] UGSC 39 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from the Court of Appeal's dismissal of an appeal against the High Court's refusal to set aside a consent judgment
Decision
Appeal dismissed; consent judgment upheld; 2nd appellant to pay the remaining loan sum of US$15.6 million

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Holding

On a second appeal challenging the Court of Appeal's refusal to set aside a consent judgment, the Supreme Court dismissed the appeal. It held that an adjournment is granted only for sufficient cause as a matter of judicial discretion, and that Article 28(1)'s right to legal representation cannot be abused by litigants who engineer counsel's absence to delay a hearing pending six and a half years. The Court of Appeal had properly re-evaluated the evidence and correctly treated unsupported and unraised grounds as abandoned. A consent judgment, freely entered and partly performed, will not be set aside absent fraud, mistake, misapprehension or contravention of court policy, none of which existed.

Facts

The 1st and 2nd appellants were customers of the 1st respondent bank. In 2005 the 1st appellant borrowed UGX 3.2 billion, and in 2006 the 2nd appellant borrowed US$13.5 million. Both defaulted, and the bank commenced foreclosure, appointing the 2nd and 3rd respondents as joint receivers and managers. After the appellants sued to restrain realisation of the securities, the matter was referred to mediation before a Commercial Court judge, and on 25 March 2009 the parties signed a consent judgment under which the 1st appellant agreed to pay UGX 4.5 billion and the 2nd appellant US$15.6 million by instalments. The appellants then applied to set aside the consent judgment, alleging mistake, misrepresentation and defective mediation; the High Court dismissed the application. The 1st appellant later paid its UGX 4.5 billion and recovered its security, but the 2nd appellant's US$15.6 million remained unpaid. The appellants' appeal to the Court of Appeal — repeatedly adjourned over six and a half years — was dismissed, and they appealed to the Supreme Court.

Issues

  1. Whether the Court of Appeal denied the appellants their constitutional right to legal representation by refusing a further adjournment of the appeal.
  2. Whether the Court of Appeal erred in dismissing grounds 1, 2 and 4 of the appeal as abandoned or non-compliant with the rules.
  3. Whether the Court of Appeal, as first appellate court, failed in its duty to re-evaluate the evidence on record.
  4. Whether the consent judgment was a nullity at law and ought to have been set aside.

Orders

  • Preliminary objection to expunge the respondents' supplementary record of appeal dismissed.
  • Appeal dismissed.
  • Costs awarded to the 1st respondent in the Supreme Court and in the courts below.

Key headnotes

Civil Procedure — Adjournments — Judicial discretion and sufficient cause
An adjournment is not granted as of right but only for sufficient cause in the exercise of the court's judicial discretion, having regard to the applicant's conduct, diligence, and the truth and sufficiency of the reason given.
Constitutional Law — Fair hearing — Right to legal representation under Article 28(1)
The right to legal representation guaranteed by Article 28(1) of the Constitution coexists with the right to a fair and speedy hearing and cannot be abused by a litigant who ensures the absence of counsel in order to force an adjournment.
Contract Law — Consent Judgments — Grounds for setting aside
A consent judgment is binding and will not be varied or set aside unless it was obtained by fraud or collusion, entered without sufficient material facts, made in misapprehension or ignorance of material facts, or for some other reason that would enable a court to set aside an agreement.
Civil Procedure — First appellate court — Re-evaluation of evidence
There is no set format to which the re-evaluation of evidence by a first appellate court must conform; the extent and manner of re-evaluation depend on the circumstances of each case and the style adopted by that court.
Civil Procedure — Appeals — New grounds and matters not raised below
A party may not, without leave of the court, argue a ground not specified in the memorandum of appeal, nor may a matter that was never raised before the trial court be raised for the first time on appeal.
Civil Procedure — Second appeal — Findings of fact
On a second appeal, the court is precluded from questioning the trial court's findings of fact where there was evidence to support them, and may interfere only where it considers that there was no evidence to support the finding, that being a question of law.

Legislation cited (11)

  • Constitution of the Republic of Uganda Article 28(1)
  • Civil Procedure Rules Order 17 r.1
  • Judicature (Supreme Court Rules) Directions S.I. 13-11 r.82
  • Judicature (Supreme Court Rules) Directions S.I. 13-11 r.83
  • Judicature (Supreme Court Rules) Directions S.I. 13-11 r.86
  • Judicature (Supreme Court Rules) Directions S.I. 13-11 r.98(a)
  • Judicature (Court of Appeal) Rules r.30(1)
  • Judicature (Court of Appeal) Rules r.86(1)
  • Judicature (Commercial Court Division) Mediation Rules 2007 r.19
  • Judicature (Commercial Court Division) Mediation Rules 2007 r.20
  • Judicature (Commercial Court Division) Mediation Rules 2007 r.21

Cases cited (7)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Attorney General and Uganda Land Commission v James Kamoga and Another (Civil Appeal No. 8 of 2004)
  • Famous Cycle Agencies Ltd and 4 Others v Mansukhlal Ramji Karia and Others (Civil Appeal No. 16 of 1994)
  • Uganda Breweries Limited v Uganda Railways Corporation (Civil Appeal No. 6 of 2001)
  • 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)
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.