[2022] UGHCFD 33

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) MISCELLANEOUS APPLICATION NO. 811 OF 2021 (ARISING FROM HIGH COURT CIVIL SUIT NO. 44 OF 2019)**

**NABULYA JOYCE =========================== APPLICANT**

## **VERSUS**

- **1. MUSOKE TONNY** - **2. NAKINTU CATHERINE** - **3. NAMWANJE FLORENCE** - **4. NDAGIRE REBECCA** - **5. KATEREGGA RONALD ================== RESONDENT**

## **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

## **RULING**

## **Introduction**

This ruling is in respect of an application brought under sections 14 and 33 of the Judicature Act, sections 82 and 98 of the Civil Procedure Act, Cap. 71 and Orders 52 rules 1 and 3 of the Civil Procedure Rules S. I 71-1 for Orders that;

- (a) The Consent Judgement dated **20th May 2021** arising from High Court Civil Suit No.44 of 2019 relating to the estate of the late **METHUSERA KEEYA** be **reviewed and set aside**; - (b)**High Court Civil Suit No. 44 of 2019** be heard on merit;

- (c) The applicant be added as a co-defendant to the **High Court Civil Suit No.44 of 2019**; - (d)Costs of the Application.

#### **Appearance and Representation**

When the matter came up for hearing, the applicant was represented by Counsel Muganga John Patrick, the 1 st , 2 nd, 3rd and 4th respondents were represented by Counsel Kalule Fredrick Robert while the 5th respondent was represented by counsel Oundo Charles. Counsel for all parties filed written submissions citing authorities and the same have been considered in this ruling.

#### **The application**

The application is supported by the affidavit of one Nabulya Joyce (herein after referred to as **the applicant**), a biological child to the late Salongo Methuserah Keeya. The grounds of the application as contained in the application and the affidavit can be summarized as follows;

That the late Salongo Methuserah Keeya (hereinafter referred to as **the deceased**) died testate and that his Will dated 5th October 2012 was proved by this Court before granting probate to Kateregga Ronald (hereinafter referred to as **the 5th respondent**). The said Will distributed the deceased's property to children namely: **Nakyejwe Harriet, Nannono Juliet Keeya, Kavuma Henry, Mwanje Geofrey, Kateregga Ronald (5th respondent), Kalema Sam, Nabulya Joyce and Keeya Rogers.** That the 1st to 4th respondents challenged the said grant on grounds of fraud and forgery among others for which they secured a temporary injunction that the 5th respondent was held contemptuous upon and remanded to civil prison.

The 5th respondent was made to sign a consent judgment on 20th May 2021 before he could be released from civil detention. In the said consent judgment, the respondents distributed the estate of the deceased among themselves and their respective advocates sidelining the applicant and many other beneficiaries. That the respondents under the said consent appointed **Ndagire Rebecca, Musoke Tonny and Nakamya Aida** as the prospective administrators of the estate of the deceased without the consent and approval of other beneficiaries. The applicant contends that the consent judgement is based on unjust enrichment amongst themselves and their respective advocates.

The applicant further avers that this honourable court had the duty to determine whether the Will was a forgery, who were the rightful beneficiaries of the estate of the deceased and paternity of the 1st to 4th defendant before they can be entitled to the estate of the deceased. She further states that the consent was procured through a glaring mistake that the parties to it were the only beneficiaries of the estate of the deceased. As such, it is in the interest of justice and equity that the application should be granted and the orders being sought for issued.

Musoke Tonny, Nakintu Catherine, Namwanje Florence and Ndagire Rebecca (hereinafter referred to as the **1 st, 2nd, 3rd and 4th respondents** individually but collectively as **the respondents**) swore an omnibus affidavit in reply to the application being represented by the 4th respondent, Ndagire Rebecca. It was averred in the said affidavit that the applicant was the biological daughter of the deceased. The respondents averred that it was a falsehood that the deceased died testate. That a consent judgment was reached between the 1st to 4th respondents and the 5th respondent and other family members of which the applicant was among, in which new administrators were appointed and their roles outlined therein in respect of the estate but that the estate was never distributed among them.

The said respondents further contended that it is a falsehood that the respondents desired to sell off the estate without taking into account the Applicant's interest. It was a unanimous consensus by all the family members that the estate be valued and sold and the proceeds be shared evenly by all beneficiaries including the applicant.

The respondents also stated that the Will was a forgery as the 5th respondent who was a beneficiary was also named as the executor in the said Will and that the same only named 7 out of 15 children of the deceased. It was on that basis that the 5th respondent's claims based on the Will were defeated and he accepted by signing the consent judgment.

The respondents also stated that the applicant lacks the onus to raise issues of paternity of her siblings as she is not their parent and the same are made in bad faith. That the estate has never been distributed and the interests of all beneficiaries to the estate were catered for. They further averred that the applicant is very uncooperative, unfriendly, has a lot of intrigue and doesn't want peace in the family. That the prayers sought for by the applicant are untenable and she is not entitled to them either.

The 5th respondent in his affidavit in reply averred that the deceased died testate naming him, the applicant and six others as his biological children. That the 1st to 4th respondents filed a case challenging the Will upon which he was granted probate, as a forgery. That on 23rd April 2021, the 5th respondent was committed to civil prison for contempt of Court Orders. He was released from prison on 21st May 2021 after he had signed the consent judgment on 20th May 2021 against his will in which he relinquished his power as the executor without the presence of the applicant and other beneficiaries.

The 5th respondent also stated that the 1st to 4th respondents and a one Nakamya Aida were appointed as administrators without the consent and knowledge of the applicant. That he signed the consent judgment under duress for fear of being sent

back to civil prison, abdicating his duties as an executor. He also conceded to paragraphs 12 to 21 of the applicant's application.

The applicant filed an affidavit in rejoinder in which she stated that she had never consented to nor signed the consent judgment dated 20th May 2021. That there has never been a hearing to investigate whether the Will of the deceased was forged. The applicant also stated that by the time of filing the application, no letters of administration had been granted by this Court. That there was no involvement of all the beneficiaries of the estate in the execution of the said consent judgment and the issue of the paternity of some of the dispute children and validity of the Will was never settled in the consent judgment. The applicant implored the Court to investigate the circumstances under which the 5th respondent signed the consent. She further stated that the respondents' interest in selling the estate properties without her consent as a beneficiary and determination of who the real children of the deceased are, was erroneous and a basis of unending disputes over the estate.

#### **Facts**

On 20th May 2021, a consent judgment was entered into by the respondents for the management and distribution of the estate of the late Salongo Methuserah Keeya without the involvement of the applicant and/or all the beneficiaries of the said estate. The said consent is said to have been executed between the 1st to 4th respondents and the 5th respondent while the 5th respondent was in civil prison on charges of contempt of Court Orders. The applicant who is a daughter and /or beneficiary to the estate of the deceased being aggrieved by the said consent, desires it to be set it aside so that the head suit is heard on merit on issues of fraud, forgery and paternity of some of the respondents.

It is against that background that the applicant filed this application in court.

#### **Issues**

Both the applicant and the 1 st to 4th respondents' counsel raised the following issues for determination:

- *1. Whether there are sufficient grounds for setting aside the consent judgment dated 20th May 2021; and* - *2. Whether there are any remedies available.*

#### **Resolution of the issues**

## **Issue 1: Whether there are sufficient grounds for setting aside the consent judgment.**

The gist of the submissions of Counsel for the applicant is that the consent judgement entered into by the respondents was illegal, a mistake of fact and a misrepresentation of facts to Court. Counsel argues that the consent judgment affects the rights of the applicant as a beneficiary of the deceased's estate since it was entered into without consulting her and there is also doubt as to the paternity of some of the respondents. He further argued that the issue of the validity of the Will was never settled in court nor in the said consent judgment and that the timing of signing of the consent by the 5 th respondent was in an unfortunate condition since he was in prison at that particular time.

While relying on the Court decision in the case of **Mitter Investment Limited Versus East African Portland & Cement Company limited, HCMA No. 534 of 2012** in which Justice Madrama Izama citing with approval the case of **Mohammed Alibhai Versus W. E Bukenya Mukasa & Others SCCA No. 56 of 1996,** where it was held that "… *a person considering himself and herself aggrieved includes a third party who was not a party to the proceedings where the Order or Decree was issued*…", counsel for the applicant submitted that the applicant had suffered a legal grievance and has a direct interest in the matter that tends to deprive her of the

property she is entitled to under a valid Will which was not proved to be forged, the paternity of some of the respondents remained unresolved which is sufficient ground for Court to order a hearing.

The 1st to 4th respondents' counsel on the other hand while relying on the case of **Geoffrey Obote Versus Felix Obote & 2 Others Miscellaneous Civil Application No. 0081 of 2018** submitted that,

*"… a consent judgment is binding on the parties…has to be upheld unless it is vitiated by the fact that it was entered into without sufficient material facts or a misapprehension or ignorance of material facts or it was actuated by illegality, fraud, mistake, contravention of court policy or any reason which would enable the court to set aside an agreement."*

Counsel submitted that the issues of the Will had been addressed in Civil Suit No. 44 of 2019, the estate of the deceased has never been distributed, the deceased never left a Will. That the presiding Judge in Civil Suit No. 44 of 2019 guided that one cannot be an executor in a Will for which he is a beneficiary at the same time, which was a glaring indicator that the said Will is a fraud. Counsel submitted on the issue of paternity that the applicant lacked the onus to raise such an issue as she is not the parent of the respondents and as such, there was no discovery of new and important matter or evidence. That after the exercise of due diligence, the said evidence was not within her knowledge and that the applicant could not produce the same. Counsel for the respondents argued that there was no error or mistake on the face of the record.

Counsel for the respondents further submitted that the applicant's prayer to be added as a co-defendant on High Court Civil Suit No. 44 of 2019 are misplaced prayers. That the applicant was not a party to the said suit and cannot apply to be added in an application to review a consent where she was not a party. That the applicant has not given reasons as to why she wants to be added to the said Civil Suit, she has not shown interest to be added and therefore cannot advocate for the hearing of Civil Suit No. 44 of 2019 which was concluded. Counsel prayed for the application to be dismissed for lack of merit.

Counsel for the 5th respondent while citing the case of **Attorney General Versus James Mark Kamoga CA No. 008 of 2004** submitted that the 5th respondent in his affidavit admits to signing the said consent judgment in absence of the applicant and that he signed it under duress for fear of being sent back to prison. Counsel for the 5 th respondent, while associating himself to the submissions of the applicant stated that there was an error apparent on the face of the record rendering the consent illegal. As such, there was sufficient reason to warrant the review of the consent judgment, set it aside and have the main suit heard on its merits.

In rejoinder, counsel for the applicant submitted that the issue of validity of the Will was never settled by court, the issue of paternity was one of the wishes of the deceased, there was no free will on the part of the 5th respondent in signing the consent and that there was no agreement as to the sale of the property of the deceased by all the beneficiaries. She reiterated her prayers in the application.

After careful consideration of the pleadings and the submissions of counsel for all parties, I find that it is not in dispute that the applicant is the biological daughter of the deceased. It is also not disputed that the applicant was not a party to High court Civil Suit No. 44 of 2019. It is also not in dispute that the said consent judgment was entered into by the respondents but rather its validity is what is in contention.

I do not believe that the 5th respondent was coerced into signing the consent judgment because I strongly believe that the Court gave him an opportunity to confirm that he was voluntarily entering into a consent judgment.

However, I am satisfied that the applicant has suffered a legal grievance by virtue of being a beneficiary to the deceased's estate and the consent judgment did not take into consideration her interests and those of other beneficiaries named in the Will. The 5th respondent in his affidavit in reply emphatically states that the applicant was not involved in the signing of the consent judgment and neither was she consulted when the decisions were being made.

I am inclined to agree with the applicant that the issues that pertain to the validity of the Will and the paternity of some of the respondents were never settled by Civil Suit No. 44 of 2019 nor the consent judgment. There is no evidence on record of the same. Since probate was granted pursuant to the Will, the said Will is deemed valid until the Court decides otherwise. I believe that hearing the main suit on its merits will be able to resolve the contention over the Will.

As in the case of **Geoffrey Obote Versus Felix Obote & 2 Others Miscellaneous Civil Application No. 0081 of 2018** cited by Counsel for the 1st to 4th respondents, I find that there is sufficient reason to set aside the consent judgment on ground of mistake. As such, the consent judgment that disposed of Civil Suit No. 44 of 2019 is hereby set aside.

The main suit shall be heard on merit on issues of fraud, forgery and paternity of some of the respondents.

In the premises, the second issue has been resolved by the first one. The main suit shall be set down for hearing.

### **Conclusion**

I, therefore, find that sufficient reasons exist for setting aside the consent judgment. This application is allowed and the following Orders are given;

- (a) The consent judgment which was entered into in **Civil Suit No. 44 of 2019** between the respondents on 20th May 2021 is hereby set aside; - (b) Civil Suit No. 44 of 2019 shall be set down for hearing on its own merits and; - (c) Each party shall bear its costs.

I so order.

## **Dated at Kampala this 1st day of June 2022.**

………………………………

Alice Komuhangi Khaukha **JUDGE 1/06/2022**