[2023] UGHCCD 302

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT JINJA

## **MISCELLANEOUS CAUSE NO. 212 OF 2021**

# (ARISING FROM LAND CIVIL SUIT NO. 065 OF 2019)

# THE MANAGEMENT COMMITTEE OF BUWENDA PRIMARY SCHOOL ::::::::::::::::::::::::::::::::::: **VERSUS**

- 1. WANYAMA PETER - 2. OKELLO JOSEPH - 3. OCHIENG JOSEPH

RESPONDENTS

4. THE REGISTERED TRUSTEES OF THE **CHURCH OF UGANDA- BUSOGA DIOCESE**

# **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### RULING ON PRELIMINARY OBJECTION

#### **Background**

This Application was brought by way of Notice of Motion under Section 82 & 98 of the Civil Procedure Act, O. 46 Rule 1 & O. 52 Rules 1 & 3 of the Civil Procedure Rules SI 71-1 (as amended) for orders that:

- 1. The decree in land HCCS No. 065 of 2019 be reviewed and set aside. - 2. The Consent Judgement in land HCCS No. 065 of 2019 and all the Orders arising there from be reviewed and set aside. - 3. The Applicant be joined as a Defendant in land HCCS No. 065 of 2019 and the matter be heard de novo. - 4. Costs of the Application.

### **Brief facts**

The facts giving rise to this preliminary objection raised by Counsel for the 4^th Respondent are that the Applicant is applying to review the Consent Judgement in HCCS No. 065 of 2019 and one of the grounds raised by the Applicant is that the Consent Judgment between the 1^st and 3^rd Respondents on the one hand and the 4^th Respondent on the other, dated 11^th October 2021 and sealed by the High Court Registrar on the 28^th day of October 2021 was procured by fraud, illegality, collusion and is contrary to the policy of court. It was from that ground that Counsel for the 4^th Respondent raised a preliminary objection on the mode used to institute a suit where fraud is

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alleged which, in his opinion, should not be by way of Notice of Motion but rather by way of filing a substantive suit.

### Representation

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At the hearing, the Applicant was represented by Counsel Kiiza Moses while the 1^st, 2^nd and 3^rd Respondents were represented by Counsel Nabwere Rose and the 4^th Respondent was represented by Counsel Tuyingire Onesmus. At the hearing of this Application, all the Respondents' Counsel consented to its reinstatement. Counsel for the 4^th Respondent then raised a Preliminary Objection to this Application which is the subject of this ruling. The Court gave the parties schedules for filing written submissions on the Preliminary Objection which were duly filed and have been considered in this ruling.

### **Submissions**

It was the $4^{th}$ Respondent's submission that it is trite law that if a party is seeking a relief founded on fraud, that party ought to file an ordinary suit to prove fraud strictly, by calling witnesses and not to file an application by Notice of Motion accompanied by an affidavit.

The 4^th Respondent relied on the cases on Sanyu Lwanga Musoke vs Yakobo Ntate Mayanja SCCA No. 59 of 1995 [1997]11 KALR 1-16 and the case of Hannington Wasswa & Another vs Maria Onyango Ochola SCCA No. 22 of 1993; where it was held, that it was not proper to commence proceedings to challenge the alleged acts of fraud by Notice of Motion, because the standard of proof must be high.

In reply, the Applicant submitted that in the above cases cited by the 4^th Respondent, their Lordships erroneously thought that the standard of proving fraud, being higher than that which is required in ordinary civil cases cannot be proved by affidavit evidence.

The Applicant further submitted that fortunately, the Supreme Court has since departed from that position in its decisions in Election Petitions which are proved by affidavit evidence yet they bear the same standard of proof as that of fraud. Counsel cited the case of Col (Rtd) Besigye Kizza Vs Museveni and Electoral Commission Election Petition NO. 1 of 2006, wherein Odoki C. J (as he then was) cited with approval the observations of Lord Denning in the English case of Blyth-v-Blyth (1966) A. C 643 where it was stated that "The Courts must not strengthen it nor must they weaken it. Nor would I think it desirable that any kind of gross should be put on it". When Parliament has ordained that a Court must be satisfied only parliament can prescribe a lesser requirement. No one whether he be a judge or juror would in fact be satisfied

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"if he was in a state of reasonable doubt" ... it is standard of proof that is very high".

Counsel further submitted that it is trite law that fraud can be proved by affidavit evidence as long as it is pleaded and particularized. For this submission, Counsel relied on the cases of Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No. 22 /1992 (unreported) and Okello Charles Engola Vs Electoral Commission & Anor, Election Petition No. 26 and 94 of 2016.

# Issue for determination by the court

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

### **Analysis**

I have carefully perused the Court record and found that this is an application for review and setting aside of the Consent Judgement entered in HCCS No. 065 of 2019 between the $1^{st}$ , $3^{rd}$ and $4^{th}$ Respondents.

### The law

As earlier noted, this Application was brought under Order 46 R 1 of the Civil Procedure Rules. Rule 8 of the same Order gives the procedure for Applications for review to be by Motion on Notice.

Order 46 provides a spectrum of grounds for which an application for review can be instituted which include;

- a) By a person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or; - b) By a person considering himself or herself aggrieved by a decree or 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 diligence, was not within his or her knowledge or could not be produced by him or her 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 or her, may apply for an order for review of judgment to the court which passed the decree or made the order.

My understanding is that the phraseology "for any other sufficient reason" includes fraud as a ground that would warrant review of a decision.

In Innocent Odama Atriason Vs. St. Daniel Comboni College (MA 0007of **2017)** it was held interalia that;

"Historically, therefore, it was considered that a fresh action was necessary where a party sought to establish that a consent judgment was tainted by fraud or mistake (see Jonesco v. Beard [1930] AC 298 and de Lasala v. de Lasala [1980] AC 546). The logic of this approach was that a fresh action would be required as the main proceedings were no longer extant, having been concluded, and could not be revived by an application made within the proceedings. Fresh pleadings would be required setting out the allegation of fraud, mistake or nondisclosure and seeking the set aside of the order by way of relief and the matter would proceed to a trial of the allegations.

However, in Hirani v. Kassam [1952] EA 131, followed in Attorney General and another v. James Mark Kamoga and others, S. C. Civil Appeal No. 8 of 2004, it was held, inter alia, that;

"Prima facie, any order made in the presence and with the consent of counsel is binding on all the parties to the proceedings or an action, and it cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court .... or if the consent was given without sufficient material facts, or in general for a reason which would enable a court to set aside an agreement.... It is a well settled principle therefore that a consent decree has to be upheld unless vitiated by a reason that would enable Court to set aside an agreement such as fraud, Mistake, Misapprehension or Contravention of Court policy."

Similarly, in Babigumira John and others v. Hoima Council [2001 – 2005] HCB 116, it was held inter alia that a consent order can be set aside if it 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. In Pavement Civil Works Ltd v. Andrew Kirungi, High Court Misc. Application No. 292 of 2002, it was held that a consent Judgment and decree cannot be set aside by appeal but rather by a suit, or by an application for a review of the Judgment sought to be set aside. But that the more appropriate *mode is by an application for review.* The reasons that would enable court to set aside a consent judgment are fraud, mistake, misapprehension or contravention of court policy.

I am inclined to agree with the Applicant's Counsel that an application to review a consent judgment allegedly arrived at fraudulently can be ably determined by an application for review under Order 46 of the CPR. There is a wealth of recent authorities, some of which I have cited above while others were cited by the Applicant's Counsel that support this proposition.

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The Civil Procedure Rules specifically provide for Motion on Notice as the mode of institution under Order 46 Rule 8 of the Civil Procedure Rules for applications for review such as this one.

I thus find no merit in the objection.

The objection thus fails.

Costs shall be in the cause.

I so order.

JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI Ruling delivered in open court on 2^nd June 2023.