The estate of the late Charles James Mark Kamoga & Another v Attorney General & 9 Others (Civil Appeal 1 of 2022)

Supreme Court · [2024] UGSC 15 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from a Court of Appeal decision dismissing an appeal from the High Court

Decision

Appeal dismissed; Court of Appeal decision upheld; High Court Civil Suit No. 450 of 2016 to be heard expeditiously on its merits

The full judgment

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Holding

The Supreme Court dismissed a second appeal and upheld the Court of Appeal. On res judicata, it held that this Court's earlier decision in Civil Appeal No. 8 of 2004 determined only procedural points, not the substantive issue of fraud, and the consent judgment relied on was entered between only two parties and had been set aside; the later suit is therefore not res judicata. On limitation, although the cause of action arose in 2001, the protracted litigation could not be counted against the respondents and, given the High Court's direction that a suit be filed, the action was not time barred. High Court Civil Suit No. 450 of 2016 must be heard on its merits, including the fraud allegations.

Facts

The suit property at Mbuya Hill, Kampala originally belonged to an Asian proprietor, Gangaram Teckchand. Part of it was leased and later vested in Government following the dissolution of the Uganda Advisory Board of Trade. In 1995 the Uganda Land Commission subdivided Plot 70 into ten plots and offered them to civil servants in occupation under the Civil Servants Pool Houses Sales Scheme; leases and titles were granted to several respondents. The late Charles James Mark Kamoga and the second appellant, claiming descent from Gangaram Teckchand, sued in HCCS No. 1183 of 1997 and obtained a consent judgment in 2001 with the Uganda Land Commission declaring them lawful owners. The 2nd to 10th respondents, who were not parties to that consent, sought to set it aside, alleging the appellants had misrepresented their descent. After protracted litigation, the High Court directed that a fresh suit be filed to determine fraud, leading to HCCS No. 450 of 2016. The appellants' plea of res judicata and limitation was rejected by the High Court and the Court of Appeal.

Issues

Whether the Court of Appeal erred in holding that High Court Civil Suit No. 450 of 2016 is not res judicata.
Whether the Court of Appeal erred in failing to find that High Court Civil Suit No. 450 of 2016 was time barred under section 5 of the Limitation Act.

Orders

Appeal dismissed; the judgment and orders of the Court of Appeal upheld.
High Court Civil Suit No. 450 of 2016 to be fixed and heard expeditiously in the High Court.
Each party to bear its own costs.

Key headnotes

Civil Procedure — Res Judicata — Requirement of a final decision on the merits

A suit or issue dismissed on technicalities or preliminary points, without determination of the merits, does not give rise to the doctrine of res judicata under section 7 of the Civil Procedure Act.

Civil Procedure — Res Judicata — Same parties requirement and consent judgments

A consent judgment entered into by only some of the parties cannot bar a subsequent suit on a plea of res judicata against parties who did not participate in the consent, as the requirement that the parties be the same is not satisfied.

Civil Procedure — Res Judicata — Effect of a consent judgment that has been set aside

A consent judgment that has been set aside is non-existent and cannot form the basis of a successful plea of res judicata, particularly where the party has not appealed against the order setting it aside.

Land & Property — Limitation of Actions — Computation of time where a court directs the filing of a suit

Where a court permits or directs that a suit be filed within a stipulated time, the limitation period is reckoned from the date so permitted, and delay occasioned by protracted prior litigation is not counted against the party so as to render the action time barred under section 5 of the Limitation Act.

Evidence — Fraud — Standard and burden of proof

Allegations of fraud must be specifically pleaded and strictly proved, the burden being heavier than the ordinary balance of probabilities applied in civil matters.

Constitutional Law — Right to a Fair Hearing — Parties bound by a consent judgment without being heard

Parties whose interests are affected by a consent judgment entered without their participation are entitled to a fair hearing under Articles 28(1) and 44(c) of the Constitution, and a court may make appropriate orders to ensure they are heard.

Legislation cited (7)

Civil Procedure Act s.7
Civil Procedure Act s.98
Judicature Act s.33
Limitation Act s.5
Constitution of Uganda Article 28(1)
Constitution of Uganda Article 44(c)
Succession Act

Cases cited (8)

Mansukhlal Ramji Karia & Anor v Attorney General & 2 Others (Supreme Court Civil Appeal No. 20 of 2002)
Tito Buhingiro v Uganda (Supreme Court Criminal Appeal No. 8 of 2014)
Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
Fredrick Zaabwe v Orient Bank Ltd & 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
Makula International Ltd v His Eminence Cardinal Nsubuga & Anor (Supreme Court Civil Appeal No. 4 of 1981)
Active Automobile Spares Ltd v Crane Bank & Rajesh Pakesh (Supreme Court Civil Appeal No. 21 of 2001)
J. Hannington Wasswa & Anor v Maria Onyango Ochola & Others (Supreme Court Civil Appeal No. 3 of 1992)

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