Wakilii

Ashwan & Anor v Daliph Singh (MISC. APPLICATION NO.1101 OF 2015)

High Court · [2016] UGHCCD 148 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for release of passports deposited pursuant to consent order in Misc. Application No. 447 of 2015, arising from Civil Suit No. 357 of 2015
Decision
Passports remain in court custody pending conclusion of the main suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that a consent order is binding and equivalent to a contract between parties, and can only be set aside for fraud, mistake, misapprehension of material facts, or contravention of court policy. The applicants failed to establish any grounds that would justify varying the consent order under which they deposited their passports. The application for release of passports was dismissed with costs.

Outcome

Passports remain in court custody pending conclusion of the main suit

Facts

The applicants are defendants in Civil Suit No. 357 of 2015 brought by the respondent. In Misc. Application No. 447 of 2015, which sought their arrest before judgment, the applicants consented to deposit their passports in court to prevent them from leaving Uganda until the main suit was concluded. The underlying dispute concerns a mortgage over property (LRV 2970 Folio 6, Plot 211 Kisenyi) co-owned by the respondent and Milkha Singh, securing an overdraft facility taken by M/s Garv Enterprises (U) Ltd, for which the applicants are joint personal guarantors. The applicants now seek release of their passports, stating that the first applicant needs his for a citizenship application and both wish to travel to China for business purposes. They argued that Milkha Singh had made an undertaking to the Bank of Baroda to guarantee payment of the loan. The respondent opposed the application, contending that the applicants have no known property in Uganda, have taken no steps to service the loan, and that allowing them to travel would render any decree in the main suit nugatory.

Issues

  1. Whether the court should vary a consent order by releasing passports deposited to restrict travel out of jurisdiction.
  2. Whether sufficient grounds exist to set aside a consent order under the principles established in Attorney General v Kamoga.
  3. Whether an undertaking by a co-owner to guarantee payment to the bank constitutes sufficient grounds to release the passports.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Consent Orders — Variation — Binding Nature and Grounds for Setting Aside
A consent order is binding on all parties and equivalent to a contract between the parties. It cannot be varied or discharged unless obtained by fraud or collusion, made contrary to court policy, given without knowledge of material facts, in misapprehension or ignorance of material facts, or for any reason that would enable a court to set aside an agreement.
Civil Procedure — Interlocutory Orders — Deposit of Passports — Variation Where No New Circumstances Shown
Where parties have consented to deposit passports to restrict travel out of jurisdiction pending determination of the main suit, the court will not vary that order merely because the applicants wish to travel for business or personal purposes, absent new grounds or circumstances that would justify setting aside the consent order.
Banking & Finance — Guarantees and Sureties — Co-Sureties — Right to Contribution
A co-surety who pays under a guarantee in excess of his proper proportion is entitled to recover contribution from his co-sureties. Such payment does not extinguish the creditor's rights against other co-sureties and does not constitute grounds for varying a consent order designed to secure the creditor's interests.

Legislation cited (4)

Cases cited (3)

  • Attorney General and Another v James Mark Kamoga and Another (Civil Appeal No. 8 of 2004)
  • Hirani v Kassam (1952) EA 131
  • Morgan Vs Parker Hulk (1894) 341

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ashwan & Anor v Daliph Singh (MISC. APPLICATION NO.1101 OF 2015) [2016] UGHCCD 148 (27 January 2016)
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.