Nanyonga Nakato v Namavumba and 3 Others (Misc Cause 1188 of 2022)

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

The High Court allowed the application to set aside a consent judgment entered in Civil Suit No. 729 of 2019. The court held that the applicant, as the wife of the deceased defendant and occupant of the matrimonial property which was the subject of the consent judgment, was an aggrieved party whose right to a fair hearing under Article 28(1) of the Constitution had been violated. The consent judgment disposed of matrimonial property without affording the applicant an opportunity to be heard. The court ordered that the suit be heard inter-partes with the applicant substituted as defendant.

Outcome

Consent judgment set aside; matter remitted for hearing inter-partes with applicant substituted as defendant

Facts

The applicant was the lawful wife of Ddungu Yusuf Hamis under Islamic law and had lived on the suit property, a residential house at Nakibinge Stage, Kasubi, for over 40 years, treating it as matrimonial property. The respondents and the applicant's husband entered into an agreement of sale concerning the property and subsequently filed Civil Suit No. 729 of 2019. A consent judgment was entered on 18 September 2019 and sealed on 20 December 2019, disposing of the property. The applicant was not a party to the suit. She only learned of the consent judgment in July 2022 when informed by a local official. Her husband had since died. The applicant claimed the consent judgment violated her right to be heard and sought to have it set aside on grounds including fraud, illegality, and violation of her rights over matrimonial property. The respondents opposed the application and raised preliminary objections concerning competency and compliance with oath-taking procedures.

Issues

1. Whether the applicant is an aggrieved person entitled to seek review of the consent judgment.
2. Whether the application has merits for review or setting aside the consent judgment.

Orders

• Application allowed.
• Consent Judgment in Civil Suit No. 729 of 2019 is hereby set aside.
• Civil Suit No. 729 of 2019 should proceed with an order to substitute the applicant as defendant in place of the deceased Ddungu Yusuf Hamis.
• Main suit to be heard inter-partes.
• Costs shall be in the cause.

Rules and key headnotes

Legislation cited (10)

• Judicature Act Cap 13 s.33
• Civil Procedure Act Cap 71 s.82
• Civil Procedure Act Cap 71 s.98
• Civil Procedure Rules SI 71-1 Order 46 r.1
• Civil Procedure Rules SI 71-1 Order 46 r.2
• Civil Procedure Rules SI 71-1 Order 46 r.8
• Civil Procedure Act s.67
• Marriage and Divorce of Muhammedans Act Cap.252
• Constitution of Uganda 1995 Article 126
• Constitution of Uganda 1995 Article 28(1)

Cases cited (3)

• Mohamed Alibhai v W.E. Buxenbaum and Another [1996] UGSC 2
• Attorney General and Another v James Mark Kamoga and Another (Civil Appeal No. 8 of 2004)
• Hirani v Kassam (1952) 19 EACA 131

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