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Bank Of Uganda & 2 oers v Bassajjabalaba Hides & Skins Ltd & 7 oers (HCT-00-CV-MA-0566-2008 ) (HCT-00-CV-MA-0566-2008)

High Court · [2009] UGHC 181 · 2009 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Notice of Motion to set aside a consent decree arising from a main civil suit
Decision
Preliminary objection dismissed; matter to proceed to determination on merit via written submissions

Observed later treatment

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Holding

Held that an application by Notice of Motion is a proper procedure to challenge an alleged nullity in the form of a consent decree obtained through fraud. Where a consent decree is alleged to be void, it need not be set aside with consent of parties or by fresh suit — the court can declare it a nullity. Affidavit evidence is not inherently unsuitable for fraud allegations where cross-examination can be ordered to clarify issues. Preliminary objection dismissed.

Outcome

Preliminary objection dismissed; matter to proceed to determination on merit via written submissions

Facts

Two Members of Parliament filed HCCS No. 320 of 2007 alleging misuse of public funds by Bank of Uganda through lending to Basajjabalaba Hides & Skins Limited. While that suit was pending, a consent decree was filed purportedly between the plaintiffs and defendants. Under this consent decree, Basajjabalaba agreed to refund money and thereafter recover collateral property. Based on the consent decree, the old title deeds for properties pledged as collateral were allegedly cancelled, fresh titles issued to Basajjabalaba, and the properties sold to the 3rd to 8th respondents. Bank of Uganda, Standard Chartered Bank, and one of the original plaintiffs (Christopher Kibanzanga) brought this application seeking to set aside the consent decree, alleging it was entered into without their consent and rendered their security interests worthless. The 1st respondent raised a preliminary objection challenging the propriety of the procedure adopted (application by Notice of Motion rather than fresh suit) and arguing that fraud allegations required oral evidence rather than affidavit evidence.

Issues

  1. Whether the procedure adopted by the applicants (application by Notice of Motion) to challenge the consent decree was proper.
  2. Whether allegations of fraud can be sufficiently pleaded and determined through affidavit evidence in an application.
  3. Whether the orders sought in the application were contrary to pleadings in the main suit.

Orders

  • Preliminary objection overruled.
  • Case adjourned for conferencing on 14 September 2009 at 2.30 p.m. and thereafter determination of issues on merit.
  • Costs of the preliminary objection to abide the outcome of the application.
  • Issues for determination framed by parties on 14 September 2009.
  • On 19 October 2009, respondents' application for adjournment refused.
  • Case closed for written submissions under O.17 r.4 of the Civil Procedure Rules.
  • Applicants to file submissions on or before 29 October 2009.
  • Respondents to file submissions on or before 12 November 2009.
  • Rejoinder, if any, on or before 19 November 2009.
  • Ruling fixed for 14 December 2009 at 9.00 a.m.

Rules and key headnotes

Civil Procedure — Consent Decrees — Setting Aside — Procedure When Decree Alleged to be a Nullity
Where a consent decree is alleged to be void on the basis that parties never consented to it, the decree is a nullity and need not be set aside with consent of parties or by fresh suit as required for valid consent judgments. A court can declare such a nullity through an application by Notice of Motion.
Civil Procedure — Affidavit Evidence — Fraud Allegations — Procedure
While fraud allegations generally require stricter proof and oral evidence with cross-examination, it is not necessarily improper to commence proceedings alleging fraud by Notice of Motion. The court can treat such proceedings as a suit under Section 2(x) of the Civil Procedure Act and order cross-examination of deponents on their affidavits to meet the higher standard of proof required.
Civil Procedure — Pleadings — Fraud — Sufficiency of Pleading
Fraud is a conclusion of law. If the facts alleged in a pleading create fraud, it is not necessary to allege fraudulent intent explicitly. The acts alleged to be fraudulent must be set out, and it should be stated that these acts were done fraudulently; fraudulent intent may then be inferred from the acts alleged.
Civil Procedure — Definition of Suit — Civil Procedure Act
Under Section 2(x) of the Civil Procedure Act, 'suit' means all civil proceedings commenced in any manner prescribed. Where no specific prescribed manner exists for challenging an alleged nullity, proceedings by Notice of Motion constitute a suit for purposes of the Act.

Legislation cited (7)

Cases cited (6)

  • Nagita Kafuma v Kimbowa Builders and Contractors (HCCS No. 1366 of 1972)
  • Sanyu Lwanga v Ntate Mayanja (SCCA No. 59 of 1995)
  • Interfreight Forwarders (U) Ltd v EADB [1994-95] HCB 54
  • Kibuuka Nelson & Another v Yusuf Zziwa (HCT-00-CV-MA-0072-2008, HCT-00-CV-MA-0225-2008)
  • Hannington Wasswa v Maria Onyango Ochola & Others (SCCA No. 22 of 1993)
  • B.E.A Timber & Co. v Inder Singh Gill [1959] EA 453

Full judgment

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

Bank Of Uganda & 2 oers v Bassajjabalaba Hides & Skins Ltd & 7 oers (HCT-00-CV-MA-0566-2008 ) (HCT-00-CV-MA-0566-2008) [2009] UGHC 181 (19 October 2009)
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.