Kayondo & Ors v The Administrator General & Anor (Miscellaneous Application No. 27 of 2016)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that an affidavit sworn on behalf of a party without written authority from that party offends the Civil Procedure Rules and is incompetent. The 2nd respondent's affidavit was struck out. The consent judgment was recalled because it was procured by misrepresentation and concealment of a material fact — an existing lease to Tuffoam (U) Ltd that was not disclosed. The parties were given two months to provide alternative properties to the applicants to accommodate their beneficial interests.

Outcome

Consent judgment and decree recalled; parties to provide alternative properties to applicants within two months or proceed to hearing

Facts

The applicants and respondents had entered into a consent judgment in HCCS 526/1996 concerning land comprised in Kyadondo Block 208 Plot 336 at Kawempe, registered in the name of the 2nd respondent. At the time the consent was executed, the parties (except the 2nd respondent) were unaware that the 2nd respondent had extended a lease on the property to run in favor of Tuffoam (U) Ltd to expire around 2020. This lease was not reflected on the title nor disclosed by the 2nd respondent, who represented Tuffoam as rent-paying tenants rather than lessees. The applicants had intended to sell the land free of long-term encumbrances but could not grant vacant possession due to the undisclosed lease, exposing them to legal action from a third party purchaser. When the 2nd respondent refused to provide alternative land, the applicants sought to recall the consent judgment.

Issues

1. Whether the affidavit in reply sworn by Mr. Mutyaba Sempa on behalf of the 2nd respondent without written authority should be struck out.
2. Whether the consent judgment, decree, and order entered in HCCS 526/1996 should be recalled for review based on new evidence of an undisclosed lease to Tuffoam (U) Ltd.

Orders

• The affidavit of Mr. Mutyaba Sempa sworn on behalf of the 2nd respondent is struck out and expunged from the record.
• Application allowed.
• The consent judgment entered in High Court Civil Suit No. 526/1996 on 17/05/2013, the decree passed thereon dated 24/05/2013, and the subsequent consent order entered in the same suit on 03/04/2014 are recalled for purposes of reviewing, altering or otherwise varying the same.
• The parties are to avail the applicants available alternative properties identified by both parties within two months from the date of this judgment.
• If alternative properties are not provided within the stated time, unless the parties advise court to the contrary, the main suit is to be set down for hearing.
• Costs of this application to be met by the 2nd respondent.

Rules and key headnotes

Legislation cited (10)

• Civil Procedure Act s.82
• Civil Procedure Act s.98
• Civil Procedure Rules Order 46 r.1(b)
• Civil Procedure Rules Order 52 r.1
• Civil Procedure Rules Order 52 r.3
• Civil Procedure Rules Order 3 r.1
• Civil Procedure Rules Order 3 r.2
• Civil Procedure Rules Order 7 r.4
• Civil Procedure Rules Order 1 r.12(1)
• Civil Procedure Rules Order 1 r.12(2)

Cases cited (4)

• Joy Kaingana v Dabo Boubon [1986] HCB 59
• Margret Tumwine and Others v Brian Asiimwe (Miscellaneous Application No. 125 and 132 of 2014)
• Gladys Nalwoga v Edco Ltd (High Court Case No. 5 of 2012)
• Jetha Brothers Ltd v Mbarara Municipal Council and Others (Civil Suit No. 31 of 2004)

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