Wakilii

Nsimbe & Ors v Caltex (U) Ltd & Ors (Misce. Applic. N0. 144 of 2013)

High Court · [2013] UGHCLD 80 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside consent judgment arising from civil suit
Decision
Application to set aside consent judgment dismissed; consent judgment of 23 May 2012 remains in force

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application to set aside a consent judgment. The court held that the grounds advanced did not meet the requirements for review under Order 46 r.1 CPR: there was no discovery of new and important evidence previously unavailable, the alleged mistake of counsel was not a ground for review, and the applicants were aware of all material facts when the consent was entered. The court also found that the application was brought after inordinate delay.

Outcome

Application to set aside consent judgment dismissed; consent judgment of 23 May 2012 remains in force

Facts

The applicants brought a miscellaneous application seeking to set aside a consent judgment entered on 23 May 2012 in a civil suit concerning land described as LRV 2657 Folio Wakaliga Nateete Block 18 Plots 587 and 296 at Kampala. The consent judgment had been executed through the parties' advocates. The applicants alleged that the consent was entered by mistake of their counsel, that they intended to sell the mailo interest rather than the reversionary interest, that the 4th respondent (Total (U) Ltd) was in occupation of the suit land without any lease interest, and that they only discovered this after the consent was entered. The respondents opposed the application, arguing that the applicants were at all times aware of the terms of the consent, that their counsel had full instructions to enter into the consent, and that the mailo interest and the reversionary interest were one and the same. The consent judgment provided for payment of UGX 2 million for the reversionary interest, which had been fully paid.

Issues

  1. Whether there are sufficient grounds to warrant the setting aside of the consent judgment entered on 23 May 2012.
  2. Whether the consent judgment was entered into as a result of mistake of counsel.
  3. Whether there has been discovery of new and important matter of evidence which after due diligence was not within the applicants' knowledge.
  4. Whether the consent judgment should be reviewed under Order 46 r.1 of the Civil Procedure Rules.

Orders

  • Application dismissed.
  • Costs to the respondents.

Rules and key headnotes

Civil Procedure — Review of Judgment — Grounds for Review under Order 46 r.1 CPR
An application for review of a consent judgment under Order 46 r.1 of the Civil Procedure Rules must be based on discovery of new and important matter or evidence which after due diligence was not within the applicant's knowledge at the time of the consent, or on account of some mistake or error apparent on the face of the record. Mistake of counsel is not a ground for review under Order 46 r.1.
Civil Procedure — Consent Judgments — Grounds for Setting Aside
A consent judgment derives its legal effect from the agreement of the parties and can only be set aside or rescinded on the same principles and grounds as those on which a contract would ordinarily be rescinded or set aside: by fraud, collusion, or if the consent was given without sufficient material facts or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside such an agreement.
Civil Procedure — Advocate's Authority — Consent Judgments
Where counsel has general instructions to defend a suit and the instructions have not been withdrawn, counsel has full control over the conduct of the case and has apparent authority to compromise all matters connected therewith. An advocate having approved the form of a decree is estopped from questioning the form or substance thereof. Where the parties have given all the requisite instructions to counsel before a consent judgment is entered, they need not sign the judgment themselves.
Civil Procedure — Review of Judgment — Mistake of Counsel
Mistakes of counsel are not contemplated under Order 46 r.1 CPR. The only mistakes covered by that rule are mistakes apparent on the face of the record, which are limited to mathematical and clerical errors that can be corrected under Section 99 of the Civil Procedure Act under the slip rule to give effect to the court's intention in a judgment.
Civil Procedure — Laches — Review Applications
The time taken to lodge an application for review is an important factor to consider when determining an application for review. An application brought ten months after the consent judgment was entered, where the applicants were aware of the issue even before the consent was entered, constitutes inordinate delay.
Contract Law — Unilateral Mistake — Effect on Contract
In the absence of fraud or misrepresentation on the part of the other party, a unilateral mistake by one of the parties to a contract does not vitiate the contract.

Legislation cited (6)

Cases cited (18)

  • Babigumira John & Ors v Hoima Council [2001-2005] HCB 116
  • John Nagenda & 53 Ors v Coffee Marketing Board [1997] KARL 15
  • Edison Kanyabwera v Pastori Tumwebaze [2001-2005] HCB 98
  • Kasaala Growers v Kakooza & Anor [2001] HCB Vol. 1 p.44
  • Dong Yun Kim v Uganda [2008] HCB 15
  • Calvery v. Green (1984) 55 CLR at page 244 (HL)
  • Kenya Commercial Finance Co Ltd v Afraha Education Society [2001] 1 EA (CAK) p.89
  • Hirani v Kassam (1952) EA 131
  • Attorney General v James Mark Kamoga and Anor (Supreme Court Civil Appeal No. 8 of 2004)
  • Huddersfield Banking Co. Ltd. v. Henry Lister & Co.Ltd. (1895) 2 Ch.D page 273
  • Petro Sonko & Anor v HAD Patel & Anor [1955] 22 EACA 23
  • Smith Mackenzie & Company Ltd v Wakisu Estates Ltd [1967] 1 KALR No.38
  • Brooke Bond Liebig T Ltd v Mallya [1975] EA 266
  • BM Technical Services v Francis X Rugunda [1997] HCB 75
  • Re Nakivubo Chemists (U) Ltd [1979] HCB 12
  • Yusuf v Nokorach [1971] EA 104
  • Combined Services Ltd v Attorney General (High Court Civil Suit No. 200 of 2009)
  • Muyodi v Industrial and Commercial Development & Anor [2006] EA 243

Full judgment

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Nsimbe & Ors v Caltex (U) Ltd & Ors (Misce. Applic. N0. 144 of 2013) [2013] UGHCLD 80 (3 October 2013)
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.