[1991] UGHC 25

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 436 OF 1989

ATTORNEY GENERAL APPLICANT. . . . . . . . . . . . . . . . . . . . . VERSUS

GEORGE BROWN TURYAMUREEBA ...................... RESPONDENT. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

## ORDER

This concerns an application instituted by the judgment/debtor under 0.42 Rules 1 and 6 of the Civil Procedure Rules and Section 83 of the Civil Procedure Act. In the application I have been asked to review my judgment and decree passed on 4th September, 1990. As I said in my ruling delivered on 10th April, 1991 and I re-iterate it here that it appears to me that the ideal procedure in this matter should have been for the applicant to proceed under Order 9 Rules 24 of the Civil Procedure Rules to seek to set aside the judgment and decree since the hearing was really exparte.

I decided to entertain the application because allegations were made by the applicant that the judgment was obtained on a fraudulent claim which amounts to a fundamental illegulity such that a court of justice has to consider the application disregarding any procedural irregularities therein.

The ground set out in the notice of motion is "that sufficient reason has been found to review the decree".

The application is supported by two affidavits both sworn on 28th January: 1991 by two State Attorneys - Wabunoha Robert and

$...$ $12$

Opolot J. R. Attached to WabunohaTs affidavits is a copy of decree in HC-CS 488 of 1^88 and photocopy of a letter reference BU/LO/28 dated 14th November, 1990 which was written to the (Attorney General) the applicant by the Ag. Deputy Secretary/Legal of the Bank of Uganda, the decree holder in IICCS Mo. 488 of 1988 which case had been decided by Kityo J. on 10th August, 1989. According to the decree the learned judge decreed inter alia, "that Macedez Benze Reg. No. UXB 816 now bearing the number UXB 111 lies with the plaintiff, namely the Bank of Uganda".

The decree holder who is the Respondent herein on 25th February, 1991 swore an affidavit in reply especially to affidavit of Opolot aforementioned and in it sets forth 22 (paras 5 to 24) grounds to challenge the applications Relevant paragraphs; are set out later in this ruling.

In his submissions Mr. Wabunona, learned State Attorney for the applicant, summarised the contents of the two affidavits alluded to earlier on herein and as they conta.in substantially the same statements, I herebelow reproduce verbatim relevant paragraphs of the affidavit of Opolot thus:-

"4. The above suit was heard oxparte on that day because I had another hearing vide Civil Suit No. 407 of 1989 Robert Byaruhanga Vs. Pukungiri D. A. Attorney General, before Soluade J. and therefore I could not attend the hearing.

5. That since then it has been brought to our notice that a suit had earlier on been filed by the applicant/plaintiff on the same motor vehicle against Bank of Uganda and the plaintiff/respo-

ndent hereof had lost that case. Annexed hereto as annexture is the decree in original suit No. 488 of 1988 by the Hon. Mr. Justice Kityo on the 11 th day of August, 1939\*

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6. That in his decree the Hon. Justice Kityo ordered: (a) That the lawful ownership of the motor vehicle Registration No. UXB 111 lay frith Bank of Uganda and that the Central Police Station should return it to the owners.

(b) ...........

(c) .......

7. That the Attorney GeneralTs Chambers was not aware at the time of filing its defence that there had been an earlier Civil Suit on the same subject matter vide Civil Suit No\* 488 of 1988 Bank of Uganda Vs. George Brown Turyamureeba and that judgment had been given in favour of the Bank of Uganda.

8. That the Attorney General1s Chambers only bee •me aware of the ©earlier suit when a letter from the Bank of Uganda was received in the Chambers dated l4th November, 1990 reference BU/LC/28 expressing surprise that an exparte judgment had been extracted (Annexture 2).

9. That since judgment and the time of filing this notice of motion for review the Attorney General's Chambers have been investigating the irregularities surrounding the cases.

10. That it is my belief that the earlier judgment against the Attorney General was extracted exparte by fraud and that matter was resjudilatei at the time it was filed against the Attorney General.

11. That in the circumstances the methods used by the plaintiff/ respondent to obtain judgment against the defendant/applicant were

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improper and have as a result- occasioned a gross miscarriage of justice against the applicant/defendant and which therefore requires an argent review of the judgment in the High Court Civil Suit No. 436 of 1989".

I,-must at once correct wrong impression and state that paragraph 4 of the Opolct's affidavit potrays the type of lack of deligence that must be deplored because I had personally told him in court the date when the case was due for hearing. He did not say that that day (19th April, 1990) was not suitable to him. He., could., have sent a collogue to stand in for him. Better still since my- court and that of my brother judge were within the same building though separated rooms he could have easily sought adjournment. I don't accept allegations in the affidavit that exparte judgment itself was extracted by fraud simply because the case was heard exparte.

As I said Hr. Jabunoha summarised the points raised in affidavit I have quoted above. He contended that by the time HCCS No. 436 of 1989 was instituted, the subject matter of the suit had became Resjudicata and the suit was barred by virtue of Section 7 of the Civil procedure Act. That therefore judgment was obtained by fraud. That the Court should therefore review the judgment and set it aside.

In response Mr. l-jugisha, learned counsel for the respondent referred intei' alia to the contents of the/respondent \* s affidavit. is lengthly.'consider relevant to The affidavit/reproduced its paragraphs that are partinent to the issues in as much aS Hr. Mugisha's submissions are really the contents of those paragraphs:-

Those are:

"3. That it is not true that the said HCCS No. 436 of 1989

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involved the same subject matter as in HCCS No. 488 of 1988 in as mush as the said HCCS No. 488 of 1988 involved a motor vehicle Reg. No, UXB 816 in the names of Bank of Uganda, make Mercedez Benz 2000 Colour Riossette Brov/n/Light Ivory Model: 1983? Engine No. 6/5940 - 20355474, Chassis No, VIDB 123/20 - 2A - 073751 net weight 13\$5 Kgs. whereas the said HCCS No. 436 of 1989 involved a motor vehicle Reg. No. UXB 111 in the names of George Brown Turyamureeba of P. 0. Box 2271 Kampala, make mercedez Benz 230 Colour white, Model 1978, Engine No. 6081975? Chassis No. 108102-20-025 3^1? Net weight 144-0 Kgs.

4, That the above said suits involved different parties that is in HCCS 488 of 1?89/was the defendant and the Bank of Uganda was the Plaintiff whereas in HCCS No. 436 of 1989 I was the plaintiff whereas the applicant was the defendant.

5. That I was unable to pursue the said HCCS No. 488 of 1988 because my former lawyers ,?'m/S Mnnajo & Co., Advocates who were handling the same for me were evicted from their premises and there -whereabouts were unknown to me and all my efforts to trace them have proved fruitless unto this day,

6. That consequently I was not kept abreast with the developments concerning the said HCCS No. 488 of 1988.

7. ..

8. That I have never been served with the decree in HCCS No. 488 of 1988 from the date it was passed unto this day.

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10. That I only came to be aware of the 'said decree on 21st February, 1991 when my lawyers, M/S Muhanguzi & Co., Advocates

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informed me upon their being served with the current application".

Pausing here for the moment I have to point out that I have called for the court case file in HCCS No. 488 of 1988 and perused it. I have there perused two letters from M/S Muhanguzi & Co., Advocates,, who are the present counsel for the respondent and a Notice of Motion filed on 12th August, 1989 by the previous counsel for the respondent. The two letters and the notice of motion provide answers to paragraphs 5 up to 10 reproduced above from respondent's affidavit. The contents of affidavit accompanying the Notice of Motion filed on 12th August, 1988 show that by 12th August, 1988 the respondent was. aware of the existance of HCCS No. 438 of 1988 wherein appearance had been entered though the defence hadn'^t been filed on his behalf^ One Elly Turyamubona, an advocate in the firm of Munajo & Co,, Advocates swore in the affidavit that the present respondent had returned from abroad on a business trip after JOth May, 1988 and had given instructions to Elly to put in a belated defence and counterclaim to the plaint in Suit No. 488 of 1988, Notice of Motion seeking leave to file the defence and counterclaim out of time was fixed for hearing on 2nd November, 1988. Nothing significant happened till the suit was fixed for formal hearing on 29th March, 1989 for which date Munajo & Co., the then advocates for present respondent had been served. There is a hearing notice issued by court for that purpose on 10th February, 1989 and bears stamp of faunajo & Co., Advocates dated 21st March, 1989 showing a Kampala address. Then there are the two letters I have alluded to earlier. Both boar . Ref, M. 49/89- The first is dated 14th June,

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1989\* The second is dated 14th August, 1989\* ^he first latter indicated that new advocate had been instructed to take over the case. They (new advocates) said that on 6th June, 1989 the present Advocates had learnt from Kit\o J. that he had heard the case exparte and was in process of writing judgment. Instead of moving the court belatedly at that stage to seek leave to have defendant (present respondent) to defend the suit which leave I think the learned judge might very well have considered, the advocates stated they would wait till after judgment which they would seek to set aside. Judgment was delivered on 10th August, 1989\* On 14th August, 1989 the Advocates wrote and stated in last para thereof thus ¹¹ As a matter of utmost urgency we request you to avail us the record of the proceedings leading to the exparte judgment herein because we are instructed and do intend to file applications for setting aside exparte judgment and stay of execution of the same".

That appears to have been the end of the matter. But the point is that there can be no truth in the contention that the respondent did not know the progress of HCCS No, 488 of 2988. Civil Suit No, moreover 4j6 of 1989 was filed on.20th June, 1939 about one and h^lf months before judgment was given in Civil Suit No. 488 of 1988. Indeed the plaint in 4j6 of 1989 was signed on 14th June. 1989 on the same day as the first letter alluded to above was written to court on the instructions of the present respondent. Statutory notice to sue had been served earlier when HCCS 488 of 1988 was proceeding.

In my view, therefore-, the contents of paragraphs 5,6,7,8 and 9 and indeed 10 are false 'arfcd misleading', to say the least.

The af fidavit continuos;

"11. That I verily believe that the reveletion of the existance of the judgment in HCCS 488 o:C 1988 is not at all prejudial to High Court Civil Suit Ho. 4^6 of 1989 as much as the two suits relate to different subject matter and different parties.

12. That 1 further verily believe that the letter from the Bank of Uganda which purportedly prompted the institution of the current application was not written in good faith in so far as Dank a ^g of Uganda was/all the material times aware that the. **state bad los^t** Buganda Road Court Criminal Case No. U108/87\*'in which it was the c omplainant.

1J. That the said Bank was aware that the question of ownership of motor vehicle UXB 111 pad been resolved on the basis of evidence available from both the prosecution and the defence and that the said judgment had not been appealed against by the state.

14. That Bank of Uganda did not at all raise the fact that ^I had been adjudged owner of the above said vehicle Reg. UXB 111 vide Buganda Road Criminal Case No. UIO8/87 and if it had done so the judgment in 'HCCS No. 488 of 1988 would not have been made.

15. That a lot of miscarriage of justice will be occasioned to me if judgment in HCCS No. 4p6 of 19-^9 is reviewed in as much as there was ovewhelming evidence in my favour which the applicant was aware of and left unchallenged.

16. That the- applicant was at all material times aware of the histrorical background of HCCS Ho. 4j6 of 1939 dating from the time when Buganda ^oad Criminal Case Nox U1O8/87 was instituted.

/9 17• That since the above said Criminal Qase "as ..being handled by State Attorney Charles Ogwal from the D,P,p\*s Chambers one of the Departments of the applicant's Chambers, the applicant is deemed to have been aware of the' existance of-HCCS No. 488 of 1988,

13. That ^I am advised by my lawyers ^m/\$ Muhanguzi & Co. , Advocates and 1 verily believe them to be telling the truth that the applicant-is estopned from raising the present application in so far as it is deemed to have been aware of all factors surrounding HCCS No. 4-36-of 1989.

19\* That I believe that the instant application was lodged as an afterthought after the applicant had failed to satisfy the judgment' in HCCS No. 4j6 of 1989-

20. That there were no irregularities let alone Fraud involved in obtaining judgment in HCCS Ko. 4j6 of 19&9 especially in the light of the fact that the applicant was physically represented by Mr, Opolot who was informed and was thus aware of the date of the resumed hearing,

21. That it is i»ot true that there was fraud when the decree \s extract©^d as is a11^e ged.

22. That the applicant will\* not suffer Sny injustice if the judgment in HCCS Ho, 4j6 of 1989 is allowed to stand.

25\* That it is £11 i?he interest of' justice th«t the said judgment in HCCS No, 456 of 1989 stands unnullified to enable me realise the fruits of my litigation,

24. That I am edvised by my lawyers and I verily believe thorn to be tollin'; the truth tr-\*t HCCS No. '+?6 of 1989 is not at res

judicata and that .for that matter the present application is misconceived".

In his-submissions Mr. Mugisha emphasised that no sufficient reasons have been Advanced by applicant to bring the application within the -ambit of 0.42 Rule ¹ so as to justify intervention of court by wqv of review.

In ^furth^e ^r . ^s ubin is ^s ⁱ. on^s ^h^e laⁱ d. much ^e m phas ⁱ ^s on paragraphs 5,4,5,7,8 \*2 of the respondent's affidavits and in particular that paragraphs J and 4 had not been challenged. T have dealt with paras 5,7 and 3 of Respondent's affidavit\*

Learned Counsel for the respondent cited Section 7 of the Civil Procedure Act and submitted that the doctrine of res-judicata coundn't apply to HCCS No, 4j6 of 1989 in view of the fact that the two suits dealt with different subject matters.

He cited the. cases of Patel Vs. Laraji Makanji /196?7 EA J14 in which at page JI? the Court of Appeal for East Africa stated that allegation of fraud requires strict proof. I agree with that statement as regard proof of fraud.

Learned Counsel also referred this court to Indian Code of Civil Proc c- du re Vol. 6 A. I. R. at page 4^JI0 paras 10 and 12 where the learned, authors of the book dealt with "discovery of new and important matters or evidence".

\* ' ;,4 <- ij-Sep Kessowji Isour Vs. J IP Railway JI Bombay\*5^1 at page 388 which is a decision of th? Privy Council where the Board ably dealt with same matter.

The bone of contention here is .according to 'the applicant that .in .effect if the Attorney General. had been aware of the cxistance of

HCCS No. 488 of 1988 the Attorney General could have drawn it to the attention of the court-presumably by pleadings at least, in which event this court would have been obliged to consider section 7 of the Civil Procedure Act with the consequence that judgment could not have been entered for the respondent in HCCS No. 4j6 of 1989. ^r"hat this was known by the Attorney General late after judgment through the information of a party to HCCS No. 488 of 1988 namely the Bank of Uganda. That this amounts to discovery of a new and important matter within the scope of 0.42 Bule ¹ and Section 83 requiring intervetion of this court by way of review. The respondent takes the opposite view as submitted by Mr. Hugisha and deponed in. the affidavit.

I don't agree that Section 7 of the Civil Procedure Code strictly applies in this matter. That Section states:

nMo court shall try any suit or issue in which the matter directly and subst o.ntiaily issue has been directly and substantially in issue in the former spit between the same parties,, or between parties under whom they or any of them claim, litigating under the same title., in a c<nu?t c-onmetent tx> try such subsequent suit or the suit in which such issue has been subsequently raicod, and has been heard and finally decided by such court\*'.

The Bank of Uganda which was the plaintiff in HCCS No. 488 of 1988 is for the purposes of the operation of this Section entirely diXferont from the Attorney General the defendant in HCCS No. 436 of 1989. Neither Section 7 nor explanations thereunder are applicable in my considered view. . And see decision of Udo Udoma

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C. J., as he then was, in Kao?she Vs. U. T. C. /196?7 SA\* 774 and cases there, considered.

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I should now consider the application's other aspects.

Counsel for the- applicant submitted that the judgment in HCCS No. 4j6 of 1989 was obtained by fraud in that the respondent here had been a full participant as a defendant in HCCS No. 488 of 1988 where in judgment was given against the respondent touching the same subject matter (the mercedez benz car) upon which the respondent subsequently obtained judgment in his favour against the applicant.

Order 42 Rule ¹ upon which the application is based reads: "Rule ¹ (a) Any person considering himself aggrieved

- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,or - (b) by a decree oi' order from which no appeal is hereby allowed

And who from the discovery of new and' important matter of evidence which, after the exercise of due deligence., was not within his knowledge or could not be produced by him at the time when the decree was passed or' the order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of the- judgment to the court which passed the decree **or** made the order".

Section 8j of Civil Procedure Act which wa©'<also relied upon in the application gives court similar powers of review except that as I understand the provisions of the Section, the applicant is not restricted to s\*pecificd conditions. Vor is the court restricted in

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its exercise of discretion when - entisi. dering the application when S. 8j is also relied upon.

That Section states:

''Any person considering himself -a.;greivcd.

- (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or - (b) by a decree or order from which no appeal is allowed by this Act.

May apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit".

The applicant is an aggrieved party whether it is order 42 of the Civil. Procedure Rules or Section 83 of Civil Procedure Act or both were being considered.

In view of jw-hat I have said earlier on about the virtually deliberate absence of the applicant which lead to hearing of HCCS bib. 436 of 1989 exparte, it would have been difficult for the applicant'to convince court if HCCS No. 488 of 1980 didn't exist that the application deserved any judicial leniency. To that extent I agree with respondent's counsel that a decree holder should not be deprived of the fruits of his litigation. But that applies where there is fair play.

From what I have held about the contents of paragraphs 5 to 10- of' the respondent's affidavit, I consider it a grave matter that the respondent should have so casually abandoned HCCS No. 488 of 1988 wherein the plaintiff had in the plaint claimed that the defendant therCin(respondent here) had fraudulently registered /14

- .'J? "

the vehicle (UXB 111) in dispute- and instead instituted HCCS No, 4j6 of 19?'9 against the applicant about the same vehicle. Learned counsel. in for the respondent argued forceffull# • an attempt to convice me that the two suits deal with different vehicles# I am not persuaded at this stage that this is so, A perusal of the court case files in the two suits suggest th -t barring disputed details the suit vehicle appear to me to be the same vehicle, A satisfactory resolution of the dispute as to its ownership would in the circumstances of this case emerge after hearing both sid.es and the best course would have been for the respondent to contest HCCS No, 4S8 of 1988 to the end. If agents or servants of the app.l ifant had refused to release the vehicle after the criminal trial, the respondent should have had the applicant joined as a party.to HCCS No, 488 of 1980. As I see the postion that was the best course. I don't wish to go into too mueb detail in view of the order I propose to make. But the conclusion that judgment in HCCS No. 456 of 1989 was on the facts so far disclosed obtained by fraud is inescapable. See B. E. A. Timber Co., Vs. Inder Singh Gill /1959/ SA. 467 at pages 4?2 and 475 where the Court of Appeal for East Africa held that an order obtained by misrepresentation or by telling half truths (which was fraudulent) cannot be supported. The Court was there considering an appeal hut I consider that the reasoning is applicable here.

In rny view the judgment in the criminal case in the . circumstances of this case is not helpful for the respondent. It cannot operate as 'estoppel against the applicant. The decision of Court of

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Appeal for East Africa, in Kamunye & others Vs. The Pioneer General Assurance Society Ltd. /I9717 EA. 263 which was an appeal from the High Court of Uganda amply illustrates how judgment operates as estoppel. So does the decision of the same court in Abdul Vs. Home And Overseas Insce Co., /19717 EA. 564.

Whether under 0.42 Rule ¹ or under Section 83 of Civil Procedure Act, the judgment in HCCS 436 of 1989 is liable to being set aside upon discovery of judgment in HCCS No. 488 of 1988. And see Ndav/ula Vs. Mubiru /19?67 HCB. 102. Also see Brooke Bond Liebig (T) Ltd. Vs. Mallya /I9757 EA. 265 at page 268.

Besides in the circumstances of this case I could be justified in exercising court's inherent powers to set aside the judgment and decree in HCCS. No. 4-36 of 1989 on grounds of public policy and interests of justice. The two judgments in the two suits are antagonistic to each other. Leaving decree and judgment in HCCS No. 436 of 1989 to stand in the light of the discovery of the judgment and decree in HCCS No. 488 of 1938 would render judicial procedures loughing stock and would in my considered view be contrary to all ideas of justice. In the light of my observations it is upon the respondent to decide what to do about HCCS No. 488 of 1988.

For the reasons I have endeavoured to give the application succeeds. I make the following orders:

- (a-) My judgment dated 4th September, 1990 and the consequatial decree and other orders are hereby set aside. - (b) There should be a new trial of the suit. The defendant (Attorney General) must be served with a hearing notice for purposes of rehearing the suit.

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(c) In the circumstances of this case I order that each party shall bear his own costs'of this application.

J,NSSBKOOKO

TU' ^D ^G ^E 16/5/1991

28/5/1991 at 9.05 a,m. Hr, Mbabazi for applicant, Mr, Mugisha for respondent, Mo interpreter. Ruling delivered.

28/5/1991. ^J U/DG E

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