Wakilii

Kayemba v Ssenfuma & Another (Civil Appeal No. 20 of 2013)

Court of Appeal · [2020] UGCA 2053 · 2020 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling on an application to review an earlier revision decision concerning land
Decision
Appeal partly allowed; compensation orders set aside, registered title affirmed, and parties at liberty to bring a fresh suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that although a High Court judge was entitled to review his own order that had cancelled a registered proprietor's title without hearing him, it was improper thereafter to proceed to determine the merits and order compensation. A consent judgment is a contract that can only be set aside on limited grounds; once set aside the proper course was to remit the suit for trial, not to make arbitrary compensation orders. A purchaser acquiring property through execution obtains good title, and any subsequent sale generates a fresh cause of action requiring a separate suit. The appeal succeeded only in part; the compensation orders were set aside, the registered title affirmed, and parties left free to bring fresh proceedings.

Outcome

Appeal partly allowed; compensation orders set aside, registered title affirmed, and parties at liberty to bring a fresh suit

Facts

In 2001 the Appellant bought a plot from the husband of the 2nd Respondent and built a house on it. The 2nd Respondent sued the Appellant and her husband in the Masaka District Land Tribunal for trespass. In April 2005 the parties entered a consent judgment requiring the Appellant to pay UGX 3,000,000 by a set date, failing which he would vacate. The Appellant defaulted and execution was carried out, restoring the plot to the 2nd Respondent, who then sold it to the 1st Respondent. The Appellant later successfully applied to the Chief Magistrate to set aside the consent judgment. The 2nd Respondent obtained revision in the High Court (Misc. App. No. 2 of 2011), which set aside the consent judgment, restored the property to the Appellant and ordered rectification of the register. The 1st Respondent, a registered proprietor who had not been heard, applied for review (Misc. App. No. 32 of 2011). The trial judge reviewed and set aside the earlier orders and ordered the Respondents jointly to pay the Appellant UGX 5,000,000 compensation, prompting this appeal.

Issues

  1. Whether it was proper for the High Court to hear the 1st Respondent's application for review of an earlier revision decision.
  2. Whether the application for review was barred as res judicata or as a review of an already-reviewed judgment.
  3. Whether the 1st Respondent was a bona fide purchaser for value.
  4. Whether the disputed land was customary tenure fraudulently sold.
  5. Whether the trial judge applied correct principles in awarding UGX 5,000,000 compensation.
  6. Whether the trial judge erred in failing to award costs to the Appellant.

Orders

  • The appeal is allowed in part.
  • The judgment of the High Court is set aside and substituted with this judgment.
  • The orders of the High Court in Miscellaneous Application No 2 of 2011 were set aside and that order is affirmed.
  • The orders in Miscellaneous Application No 32 of 2011 are set aside.
  • Under section 11 of the Judicature Act, the certificate of title for Buddu Block 323 Plot 344 registered in the names of Senfuma Dauda on 27 January 2006 shall remain so registered and the registry shall be rectified to reflect that registration unless the property has been transferred to a bona fide purchaser for value.
  • Any party is at liberty, subject to the law of limitation, to bring a fresh suit against any appropriate party before a court of competent jurisdiction.
  • Each party shall bear its own costs of the appeal.

Rules and key headnotes

Consent Judgments — Nature as Contract — Grounds for Setting Aside
A consent judgment is a contract between the parties and cannot be varied or set aside except on grounds that would justify setting aside a contract, such as fraud, collusion, an agreement contrary to court policy, or where consent was given in misapprehension or ignorance of material facts.
Consent Judgments — Consequences of Setting Aside — Remitting Suit for Trial
Where a consent judgment is set aside, the proper remedy is for the parties to proceed with the suit before the trial court; the reviewing court may not proceed to determine the merits or make arbitrary orders of compensation.
Execution Sales — Purchaser Acquires Good Title — Subsequent Sale as Fresh Cause of Action
A purchaser who buys immovable property pursuant to execution of a decree acquires good title, and a subsequent sale of that property generates a new cause of action that must be litigated in a separate suit.
Review — Order Affecting Non-Party's Interest — Reviewing Court's Own Order
Where a court has issued an order cancelling a registered proprietor's title without affording that proprietor a hearing, the court may properly entertain an application for review to correct that order affecting the interest of a third party.
Revision — Scope under section 83 of the Civil Procedure Act
Revision under section 83 of the Civil Procedure Act is confined to whether the trial court exercised jurisdiction not vested in it, failed to exercise jurisdiction so vested, or acted illegally or with material irregularity or injustice; it does not authorise re-determination of the substantive suit.

Legislation cited (8)

Cases cited (7)

  • Kaijuka v Kananura (Civil Appeal No. 42 of 2014)
  • Edison Kanyabwera v Pastori Tumwebaze (Civil Appeal No. 6 of 2004)
  • Brooke Bond (T) Ltd v Mallya [1975] EA 266
  • Hirani v. Kassam (EACA), 19 E.A.C.A. 131
  • Hassanali v City Motor Accessories Ltd and Others [1972] EA 423
  • Purcell v F C Trigell Ltd (trading as Southern Window and General Cleaning Co) and another [1970] 3 All ER 671
  • Huddersfield Banking Co. Ltd v Henry Lister & Son Ltd (1895) 2 Ch D page 273

Full judgment

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

Kayemba v Ssenfuma & Another (Civil Appeal No. 20 of 2013) [2020] UGCA 2053 (24 June 2020)
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.