Wakilii

The Management Committee of Buwenda Primary School v Wanyama Peter, Okello Joseph, Ochieng Joseph & The Registered Trustees of the Church of Uganda -(2)

High Court · [2023] UGHC 212 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of consent judgment arising from Land Civil Suit No. 065 of 2019, with preliminary objection raised by 4th respondent challenging the mode of instituting proceedings involving fraud allegations
Decision
Preliminary objection dismissed; matter to proceed on substantive application for review

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an application to review a consent judgment allegedly procured by fraud can properly be instituted by way of Notice of Motion under Order 46 Rule 8 of the Civil Procedure Rules. Fraud can be proved by affidavit evidence as long as it is pleaded and particularized. The preliminary objection challenging the procedural mode was dismissed.

Outcome

Preliminary objection dismissed; matter to proceed on substantive application for review

Facts

The Applicant, Management Committee of Buwenda Primary School, sought to review and set aside a consent judgment entered in HCCS No. 065 of 2019 between respondents 1-3 and respondent 4 (Church of Uganda - Busoga Diocese). The consent judgment was dated 11 October 2021 and sealed on 28 October 2021. The Applicant alleged the consent judgment was procured by fraud, illegality, collusion and was contrary to court policy. The Applicant sought joinder as a defendant and a de novo hearing. Counsel for the 4th respondent raised a preliminary objection that where fraud is alleged, proceedings should be instituted by substantive suit rather than by Notice of Motion.

Issues

  1. Whether this application for review involving fraud was instituted under the correct procedure prescribed under the law.

Orders

  • Preliminary objection dismissed.
  • Objection fails.
  • Costs shall be in the cause.

Rules and key headnotes

Civil Procedure — Review of Judgment — Consent Judgment — Proper Procedure When Fraud Alleged
An application to review a consent judgment allegedly procured by fraud can properly be instituted by way of Notice of Motion under Order 46 Rule 8 of the Civil Procedure Rules rather than by way of a fresh substantive suit.
Civil Procedure — Evidence — Standard of Proof — Fraud Proved by Affidavit
Fraud can be proved by affidavit evidence as long as it is pleaded and particularized. The standard of proof for fraud is high but does not preclude proof by affidavit, as demonstrated in election petition cases which bear the same standard.
Civil Procedure — Review of Judgment — Consent Judgment — Grounds for Setting Aside
A consent judgment can be set aside if it was obtained by fraud, collusion, mistake, misapprehension, given without sufficient material facts, or for any reason which would enable court to set aside an agreement, or if contrary to court policy.

Legislation cited (6)

Cases cited (13)

  • Sanyu Lwanga Musoke v Yakobo Ntate Mayanja (SCCA No. 59 of 1995)
  • Hannington Wasswa & Another v Maria Onyango Ochola (SCCA No. 22 of 1993)
  • Col (Rtd) Besigye Kizza v Museveni and Electoral Commission (Election Petition No. 1 of 2006)
  • Blyth-v-Blyth (1966) A.C 643
  • Kampala Bottlers Ltd v Damanico (U) Ltd (SCCA No. 22 of 1992)
  • Okello Charles Engola v Electoral Commission & Another (Election Petition No. 26 and 94 of 2016)
  • Innocent Odama Atriason v St. Daniel Comboni College (MA 0007 of 2017)
  • Jonesco v. Beard [1930] AC 298
  • de Lasala y. de Lasala [1980] AC 546
  • Hirani vy. Kassam [1952] EA 131
  • Attorney General and Another v James Mark Kamoga and Others (S.C. Civil Appeal No. 8 of 2004)
  • Babigumira John and others vy. Hoima Council [2001 - 2005] HCB 116
  • Pavement Civil Works Ltd v Andrew Kirungi (High Court Misc. Application No. 292 of 2002)

Full judgment

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The Management Committee of Buwenda Primary School v Wanyama Peter, Okello Joseph, Ochieng Joseph & The Registered Trustees of the Church of Uganda -(2)
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.