Wakilii

Kamoga and Another v Attorney General and Another (Civil Appeal No. 74 of 2002)

Court of Appeal · [2004] UGCA 57 · 2004 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court order allowing review and setting aside a consent judgment
Decision
Appeal allowed; the lower court's review order set aside and the consent judgment reinstated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a judge has no power to review a consent judgment entered by a deputy registrar; under Order 42 rule 4 review lies only to the judge or officer who passed the decree. A consent judgment entered by a registrar can only be set aside under Order 9 rule 9 or the court's inherent powers under section 99, not by review. A party who consented to a judgment is not a 'person aggrieved' within section 82 and Order 42 rule 1 and cannot apply for its review. The trial judge erred in reviewing the consent judgment and in treating an already-filed defence as newly discovered evidence. Appeal allowed; consent judgment reinstated.

Outcome

Appeal allowed; the lower court's review order set aside and the consent judgment reinstated

Facts

In 1997 the appellants sued the Attorney General, the Uganda Land Commission and others claiming to be the lawful registered proprietors of freehold land at Mbuya Hill, Kampala, over which the Commission had granted leases. The respondents' amended defences alleged the appellants acquired title through fraud. A second amended defence, dated December 2000, was apparently mis-filed. After the first appellant was evicted, he filed a further suit. On 24 September 2001 the parties, through counsel, entered a consent judgment before the Deputy Registrar under Order 46 rule 2 settling both suits in the appellants' favour. In March 2002 the respondents applied under sections 82 and 98 of the Civil Procedure Act to review and set aside the consent judgment, arguing that the negotiating State Attorney had been unaware of the fraud allegation in the mis-filed defence. The High Court allowed the review, prompting this appeal.

Issues

  1. Whether it was improper for the respondents' counsel to appear and argue an application in which he had sworn an affidavit in reply.
  2. Whether a judge has jurisdiction to review a consent judgment entered by a registrar under Order 46 rule 2 of the Civil Procedure Rules.
  3. Whether the respondents were 'persons aggrieved' entitled to apply for review of a consent judgment they had consented to.
  4. Whether the second amended written statement of defence constituted a new and important matter of evidence justifying review of the consent judgment.

Orders

  • Appeal allowed.
  • Order of the lower court set aside.
  • Consent judgment initially entered by the deputy registrar reinstated.
  • Costs of the appeal awarded to the appellants both in the Court of Appeal and in the lower court.

Rules and key headnotes

Review — Jurisdiction — Judge cannot review a consent judgment entered by a registrar
A judge has no power to review a judgment or order; under Order 42 rule 4 of the Civil Procedure Rules, an application for review lies only to the judge or officer who passed the decree or made the order sought to be reviewed.
Consent Judgments — Setting aside — Proper procedure
A consent judgment entered by a registrar cannot be set aside by way of review but only by an application under Order 9 rule 9, or in appropriate circumstances through the court's inherent powers preserved by section 99 of the Civil Procedure Act.
Review — 'Person aggrieved' — Party who consented to judgment
A party who has consented to a judgment is not a 'person aggrieved' within section 82 of the Civil Procedure Act and Order 42 rule 1, and cannot apply for review, since no appeal lies under section 67 from a decree passed by consent.
Consent Judgments — Grounds for varying — Fraud, collusion or want of material facts
A consent judgment may be set aside only where obtained by fraud or collusion, or by an agreement contrary to the policy of the court, or where consent was given without sufficient material facts, in misapprehension or ignorance of material facts, or for any reason that would enable a court to set aside an agreement.
Advocates as witnesses — Counsel swearing affidavit and appearing — Regulation 8
Regulation 8 of the Advocates (Professional Conduct) Regulations 1977 is protective, not punitive; where an advocate has sworn an affidavit and also appears, the court's remarks warning against the practice do not, without prejudice or miscarriage of justice, vitiate the proceedings.

Legislation cited (13)

Cases cited (11)

  • Uganda Development Bank v Kisirre Byaruhanga & Co Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • Fr. Francis Pae vs Joseph at Kawalya Mwebe & others [1995] IV KALR 143
  • Charles Kabuna vs Byawaruha & 3 others [1995] IV KALR 29
  • Jafferali & another v Borrisow & another [1972] EA 165
  • Gandesha v Killing Coffee Estate Ltd & Another [1969] EA 299
  • Ladak Abdalla Mohamed Hussein v Isingoma Kakiiza & others (Civil Appeal No. 8 of 1995)
  • Yusufu v Nokrach [1971] EA 104
  • Hirani v Kassam (1952) 19 EACA 131
  • Hassanali v CIE Motor Accessories Ltd & Others [1972] EA 423
  • Brooke Bond Liebig v Malya [1975] EA 966
  • Mohammed Allibhai v (Another) (Supreme Court Civil Appeal No. 56 of 1996)

Full judgment

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Kamoga and Another v Attorney General and Another (Civil Appeal No. 74 of 2002) [2004] UGCA 57 (30 March 2004)
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.