[2024] UGCommC 172

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(COMMERCIAL DIVISION)**

### **MISCELLANEOUS APPLICATION No. 0514 OF 2022**

### **(ARISING FROM CIVIL SUIT No. 0116 OF 2020)**

### 10 **1. BUSHAIJA RAUBEN**

**2. NOKAS CONTRACTORS CO. LTD …………………………. APPLICANTS**

**VERSUS**

**R. L JAIN LIMITED ……………………………………………... RESPONDENT**

# 15 **RULING**

# **BEFORE: HON. LADY JUSTICE SUSAN ABINYO**

# Introduction:

This application was brought by Notice of Motion under the provisions of section 98 of the Civil Procedure Act, Cap 71, section 33 of the Judicature Act, Cap 13 20 and Order 52 Rules 1 & 3 of the Civil Procedure Rules seeking orders that:

- a) The consent judgment between the 2nd Applicant and Respondent in Civil Suit No. 116 of 2020 be set aside. - b) The costs of this application be provided for.

#### Applicants evidence

This application is supported by an affidavit of Mr. Bushaija Rauben, the 1st 25 Applicant, and one of the Directors of the 2nd Applicant, deponed in paragraphs 1-16.

The grounds are briefly that he learnt about a notice to show cause why execution should not issue arising out of Civil Suit No.116 of 2020, which was fixed

30 on 6th May, 2022, where his name appeared as a Judgment debtor, and or Guarantor, and that upon inquiry from the Court record, he found out that a consent judgment was entered between the Respondent and the Applicants in the main suit herein, which was endorsed by the Court on 13th January, 2021.

- 5 That the said consent judgment indicated that the 2nd Applicant is indebted to the Respondent in a liquidated sum of UGX 155,000,000 (Uganda Shillings One Hundred and Fifty-Five Million only) in which the 1st Applicant appears as a guarantor however, the 1st Applicant did not appear anywhere at the time of signing the said consent, and that his signature was obtained by fraud - 10 That the Applicants never authorized Ceasor Ndyowayesu to enter into any consent on their behalf, and that Ceasor Ndyowayesu, who signed on behalf of the company does not have any authority to represent the Applicants in the purported consent.

That it is just and equitable that the Honorable Court varies the said consent 15 judgment, since the signature of the 1st Applicant was forged, and he never appeared anywhere or even had knowledge of the said consent.

# Respondent's evidence

The Respondent opposed this application in an affidavit in reply, deponed by Prachi Ashani the Branch Manager of the Respondent in paragraphs 1-13, and 20 summarized as follows;

That he is informed by their Lawyers Newmark Advocates whose advice he verily believes to be true that the said application is barred by law, and ought to be dismissed with costs. That the Respondent sued the 2nd Applicant vide Civil Suit No. 0116 of 2020 wherein, the 1st Applicant filed a written statement of defence on the 23rd day of March, 2020. That as the matter was proceeding, the 2nd 25 Applicant's Directors including the 1st Applicant approached the Respondent, and proposed to have the decretal sum compromised so that they can settle the matter amicably.

That the Applicant accepted the 2nd Applicant's proposal, and compromised the 30 sum from UGX 179,180,000 to UGX 155,000,000, which compromise was reduced into a consent, and signed by both parties. That the Applicant made part payment of UGX 40,000,000, which was paid at the execution of the consent judgment leaving the balance of UGX. 115,000,000. That the parties entered the said consent willingly, and in good faith, and the 1st Applicant together with 35 another Director of the 2nd Applicant by the name of Ceasor Ndyowayesu, agreed to bind themselves as guarantors to pay the sums in case of any default by the 2nd Applicant.

- 5 That when the consent judgment was presented the first time for signing before the trial Judge, Ceasor Ndyowayesu was present but the trial Judge directed for corrections to be made, and after making the corrections, the 1st Applicant appeared on behalf of the 2nd Applicant, and on his own behalf to confirm the contents of the consent. That the 1st Applicant duly signed the consent in his own - 10 capacity, and on his own behalf with his well-known signature that he has always used to sign all the documents connected with the loan, as seen in the copies of the resolutions, and letters attached indicating the said signature marked as Annexture "B".

That according to the consent, the Applicants were supposed to jointly, and or 15 severally pay the balance of the decretal sum together with costs within a period of one year from the time of signing of the consent, and that within that period, the Applicants neither attempted at any time to challenge the said judgment on ground of fraud, nor did the 1st Applicant ever challenge the authenticity of his signatures until upon receiving a copy of Notice to show cause why execution

20 should not issue.

That there was no need for authorization by the Applicants to Ceaser Ndyowayesu to enter into any consent on their behalf because the two Directors of the 2nd Applicant signed on the said consent, and attached their Identification Documents.

25 Representation

The Applicants were represented by Counsel Kigozi Edmund of M/S Musangala Advocates & Solicitors, and the Respondent was represented by Counsel Nelson Ainebyona of M/S Newmark Advocates.

#### Issues for determination

- 30 This Court in accordance with Order 15 Rule 3 of the Civil Procedure Rules, SI 71- 1, framed the issues for determination as follows; - 1. Whether the Applicants disclosed sufficient grounds for setting aside the consent judgment? - 2. What remedies are available to the parties?

# 5 Determination by Court

# Issue No. 1: Whether the Applicants disclosed sufficient grounds for setting aside the consent judgment?

I have taken into account the evidence of the Applicants, and the Respondent, and the submissions of Counsel for the parties herein to find hereunder.

- 10 The grounds in which, a consent judgment may be set aside is replete in a number of cases namely that; where there is fraud, or collusion, or if the consent was given without sufficient material facts, or in the misapprehension or ignorance of material facts, or for any other reason, which would enable the Court to set aside an agreement. *(See Mohamed Allibhai Vs W. E Bukenya Mukasa and Departed* - 15 *Asians Property Custodian Board, SCCA No. 56 of 1996(unreported)* and *Attorney General, and Uganda Land Commission Vs James Kamoga & Anor, SCCA No.8 of 2004)*

It's trite law that whoever alleges a given fact, and desires the Court to give judgment on any legal right or liability dependent on the existence of any fact, 20 has the evidential burden to prove that fact unless, it is provided by law that the

proof of that fact shall lie on another person. *(See sections 101, and 103 of the Evidence Act, Cap 6*, and *Jovelyn Barugahare Vs Attorney General, S. C. C. A No. 28 of 1993[1994] KALR 190)*

In the instant case, the burden, and standard of proof lies with the Applicants to 25 prove the alleged acts of fraud on the part of the Respondent.

It's settled law that the standard of proof in cases of fraud is higher than on a balance of probabilities. *(See Betuco (U) Ltd Vs Barclays Bank of Uganda Ltd & 3 Others, 2018 UGSC 39)*, cited by Counsel for the Applicant, and *Hannington Wasswa Vs Maria Onyango Ochola & Others, SCCA No. 22 of 1993 (1994) IV KALR*

30 *98***)**, where the Court held that:

*"It was improper to commence proceedings to challenge the alleged acts of fraud by notice of motion because the standard of proof must be high. The allegation of fraud required an ordinary suit where witnesses would be cross-examined."* [Emphasis is mine]

- 5 In the instant case, I find that the allegation of fraud by the Applicants is a serious allegation that touches on the reputation of the Respondent, and yet the evidence to be considered is limited to the affidavits, which may not be exhaustive to prove the allegations of fraud to the required standard. - 10 I am fully persuaded by the decision in *Nalumansi Christine Vs Hon. Justice Steven Kavuma, HCMA No. 0155 of 2008(Arising from HCCS No. 0784 of 2008)*, cited by Counsel for the Respondent, in which Bamwine. PJ (as he then was) held that:

*"In my view, given the serious allegations of fraud leveled against the* 15 *respondent, the shorter way of proceeding, namely, by motion is not open to the applicant. Suffice it to add, that fraud is such a serious allegation which must be pleaded and proved on evidence that can be tested under crossexamination. Affidavit evidence has its own limitations."*

20 For the reasons stated above, this Court finds that this application is improper.

Issue No.2: What remedies are available to the parties?

This Court having found issue (I) as above, further makes orders that the reliefs sought by the Applicants are not available.

Accordingly, this application is dismissed with costs to the Respondent.

25 Dated, and delivered electronically this 6th day of June, 2024.

SUSAN ABINYO **JUDGE** 30 **06/06/2024**