[2025] UGHC 82

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI MISCELLANEOUS APPLICATION NO. 45 OF 2024 (ARISING FROM CIVIL SUIT NO. 37 OF 2005)**

**BRIAN ONYANGO ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT** *(Administrator of the Estate of the Late Owino Cosmas Onyango)*

### **VERSUS**

- **1. THE REGISTERD TRUSTEES OF SOROTI CATHOLIC DIOCESE** - **2. OPONDO JOHN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** *(Administrator of the Estate of the Late Ouma Anania)*

# **BEFORE: HON. JUSTICE BONIFACE WAMALA RULING**

### **Introduction**

[1] The applicant brought this application by Notice of Motion under Sections 98 & 99 of the Civil Procedure Act, Order 46 Rules 1, 2, & 8 and Order 52 Rules 1 and 3 of the CPR seeking orders that;

- a) The Consent entered on the 19th day of April 2013 and endorsed by the Court on the 21st day of October 2013 be reviewed and set aside as to the extent of the interest of Ouma Anania is concerned. - b) The costs of the application be provided for.

[2] The grounds of the application are set out in the Notice of Motion and in an affidavit in support of the application deposed by **Brian Onyango**, the applicant and administrator of the estate of the late Owino Cosmas Onyango and grandson of the late Oyugi Nicodem Owimba. Briefly, the grounds are that in the month of April 2019, the applicant's late father who was putting up a structure on the suit land was stopped by agents of the 1st respondent. His father was reported to police and subsequently charged with the offence of criminal trespass. He was later advised by the office of the Director of Public prosecutions to file a civil suit for determination of the questions as to the ownership of the land in issue. His father thus filed Civil Suit No. 52 of 2019. It was discovered through the pleadings that the 1st respondent was claiming an interest in the land under a consent that was partially signed between the 1st respondents and the 2nd respondent's predecessor in title.

[3] It was averred by the applicant that the late Oyugi Nicodem Owimba had an interest in the land in respect of which the late Ouma Anania consented. He stated that the late Owino Cosmas Onyango (his father) and the other beneficiaries of the estate of the late Oyugi Nicodem Owimba were not aware of such consent and neither did they authorize Ouma Anania to pass an interest in their land to the 1st respondent. He averred that the consent was fraudulent and intended to deprive the late Owino Cosmas Onyango and the other beneficiaries of their interest in the suit land. He further averred that upon the death of the late Oyugi Nicodem Owimba, the applicant's father, his uncles and aunties continued using the land for cultivation until around 1988 when political insurgency forced them to leave the suit land for safety. He stated that prior to the insurgency, his late father had a house on the suit land. Towards the end of 2010 when Teso region was relatively secure, his late father together with his brothers and sisters used to check on the suit land which was intact.

[4] The deponent further stated that in 2019, the 1st respondent started putting up claims over ownership of the suit land and it was then discovered at police that the 1st respondent was claiming ownership under a certificate of title comprised in Freehold Register Volume HQT 198 Folio 9 known as Block (Road) 8 Plot 761 and 762 of Aminiti which belongs to the estate of the late Oyugi Nicodemu Owimba. It was also discovered that the late Nahemeya Onyango had been unlawfully included in the certificate of title. The deponent averred that his late father together with his brothers and sisters as children and beneficiaries of Nehemeya Onyango have never consented to the sale or transfer of their interests in the suit land to the 1st respondent. He concluded that the late Ouma Anania had no interest in the land that he consented to

and that it is in the interest of justice that the application is allowed and the consent is set aside for being null and void.

[5] Both respondents opposed the application. The 1st respondent filed an affidavit in reply deposed by **Padre Gonzaga Ongereny Waziwazi**, the Chancellor of Soroti Catholic Diocese and a registered trustee of Soroti Catholic Diocese. He confirmed that the list of defendants who consented and executed the consent judgment and decree included Ouma Anania. He averred that Owino Cosmas Onyango, the applicant's father and the other persons mentioned by the applicant had no interest in the suit land passed on to them upon the death of Ouma Anania. He further averred that the applicant has not adduced any proof of fraud in his affidavit in support of the application. He concluded that the instant application is a waste of court's time and an abuse of court process, having been brought eleven years since the matter was finally and conclusively resolved by the Court in 2013.

[6] The 2nd respondent, **Opondo John**, also deposed an affidavit in reply opposing the application in which he stated that he is a biological son and administrator to the estate of the late Ouma Anania who died in 2021. The 1st respondent filed Land Suit No. 037 of 2005 against Ouma Anania and 9 others wherein they reached a settlement and entered into a consent. The consent was in respect to each defendant's respective parcel of land. The late Ouma Anania owned land in Aminit Cell, Madera Ward in Soroti City, formerly known as Camp Jaluo. The deponent stated that he has been advised by his advocates that the applicant cannot reverse the decision of the defendant in the said land suit as they opted to settle the claim in respect of their respective pieces of land. He further stated that the applicant's father, the late Owino Cosmas Onyango, did not protest the consent judgment during his life time despite having known about the pendency of the said land suit against the defendants. He averred that he has also been advised by his lawyers that the consent judgment was binding upon the parties thereto, their next of kin, agents and or assignees of which the applicant and his father were not parties thereto. He concluded that this application is a non-starter, lacks merit, is an afterthought meant to circumvent judicial process and ought to be dismissed with costs.

[7] The applicant filed an affidavit in rejoinder in respect of the 2nd respondent's affidavit in reply. I have taken its contents into consideration.

## **Representation and Hearing**

[8] At the hearing, the applicant was represented by **Mr. Mooli Allan** of M/s Mbale Law Chambers & Co. Advocates; the 1st respondent was represented by **Prof. Oboth Okumu** of M/s Oboth Okumu & Co. Advocates; while the 2nd respondent was represented by **Mr. Engwau George** of M/s Engwau & Co. Advocates. The hearing proceeded by way of written submissions which were duly filed by all counsel and have been taken into consideration in the determination of the matter before Court.

#### **Issue for determination by the Court**

[9] One issue is up for determination by the Court namely; *Whether the application discloses any sufficient ground for setting aside the consent judgment executed on 19th April 2013?*

#### **Submissions by Counsel for the Applicant**

[10] Counsel for the applicant cited Section 82 of the Civil Procedure Act for the circumstances under which a review order may be made. Counsel submitted that although the applicant was not party to Civil Suit No. 37 of 2005, he is aggrieved by the consent judgment as it deprives him of land in which his father had an interest. Counsel relied on the case of *Attorney General v James Mark Kamoga SCCA No. 8 of 2004* to the effect that a consent decree has to be upheld unless it is vitiated by reason that would enable a court set aside an agreement such as fraud, mistake, misrepresentation or contravention of policy. Counsel submitted that the 1st and 2nd respondents connived and misrepresented to the Court that Ouma Anania had land whereas not thus fraudulently depriving the applicant of his interest in the suit land. Counsel prayed that the Court be pleased to review and vary the impugned consent judgment and decree.

## **Submissions by Counsel for the 1st Respondent**

[11] In reply, Counsel for the 1st respondent cited the case of *Nalebe Ephrance Kiyingi v Ssolome Bbosa & 2 Others HC Misc. Application No. 213 of 2018* which cited with approval the case of *F. X Mubuuke v UEB HCMA No. 98 of 2005* which articulated the grounds for review. Counsel submitted that the applicant has not demonstrated any of the grounds for review that would have justified setting aside of the consent judgment. Counsel argued that it is not enough for the applicant to allege that the consent was fraudulently procured; the applicant ought to prove the acts of fraud by the 1st and 2nd respondents in executing the consent.

[12] Counsel further submitted that applications for review require utmost urgency and have to be brought before the same judge who passed the decree or made the order. Counsel stated that the Hon. Justice Elizabeth Ibanda Nahamya who endorsed the consent in 2013 and Counsel Samuel Wegoye who represented the defendants are now deceased since the application has been brought 12 years after execution of the decree. Counsel also stated that neither the applicant nor his father were parties to Civil Suit No. 0037 of 2005. Counsel prayed that the Court finds that there is no sufficient cause to set aside the consent judgment and decree in Civil Suit No. 0037 of 2005.

## **Submissions by Counsel for the 2nd Respondent**

[13] Counsel cited the cases of *Attorney General v James Mark Kamoga & Anor Civil Appeal No. 8 of 2004[2008] UGSC 4; Brooke Bond Liebig (T) Ltd v Mallya [1975] 1 EA 266* and *Kenindia Assurance Co. Ltd v Muturi [ 1990-94] 1 EA 193* to the effect that a consent judgment/decree could only be set aside on grounds of fraud, collusion and any other factors that can set aside an agreement. Counsel submitted that neither the applicant nor his father during the pendency of Civil Suit No. 0037 of 2005 protested or applied to be added as parties to the suit. Counsel argued that it would be prejudicial to the parties to the consent, some of whom are now deceased, to have the consent set aside eleven years after execution. Counsel concluded that the application has been brought with inordinate delay and prayed that the Court finds that the applicant has no sufficient cause to warrant setting aside of the consent judgment and decree in Civil Suit No. 0037 of 2005.

# **Determination by the Court**

[14] The law on consent judgments/ decrees is now well settled. Parties to civil proceedings are free to amicably settle a dispute and consent to a judgment being entered. The parties may do so orally before a judicial officer who then records the consent or they may do so in writing, affix their signatures and place the same for endorsement by the Court. See: *Order 25 rule 6 of the CPR* and the case of *Betuco (U) Ltd & Another v Barclays Bank & Others, HCMA No. 243 of 2009*.

[15] The law, however, provides that after a consent judgment has been entered, it may be vitiated, varied and/or set aside where it is proved that it was entered into without sufficient material facts or with misapprehension or in ignorance of material facts, or if it was actuated by illegality, fraud, mistake, contravention of court policy or any reason that would enable a court to set aside an agreement. See: *Ismail Sunderji Hirani v Noorali Esmail Kassam [1952]* *EA 131* and *Attorney General & Another v James Mark Kamoga & Another, SCCA No. 8 of 2004* which cited with approval the following passage from Seton on Judgements and Orders, 7th Edition, Vol 1, page 124, thus;

*"Prima facie, any order made in the presence and with consent of counsel is binding on all parties to the proceedings or action, and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of court … or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable a court to set aside an agreement*.''

[16] It has also been held that a consent judgment/decree is passed on terms of a new contract between the parties to the consent judgment. See: *Brooke Bond Liebig (T) Ltd v Mallya (1975) EA 266* and *Mohamed Allibhai v W. E. Bukenya & Anor, SCCA No. 56 of 1996*.

[17] On the case before me, it is alleged by the applicant that the impugned consent judgment and decree was entered into through fraud and misrepresentation. The evidence adduced by the applicant in his affidavit in support and the submissions by his counsel advance the argument that the 1st respondent and the predecessor of the 2nd respondent connived and misrepresented to court that the late Ouma Anania owned land, the subject of the consent, whereas not; thus depriving the applicant of his interest in the suit land. It is the applicant's assertion that the said facts pointed to fraud capable of vitiating the consent.

[18] The position of the law is that an allegation of fraud is considered by the court to be a serious one which requires to be specifically pleaded and strictly proved; to a degree that is above a mere balance of probabilities although not to the standard of beyond reasonable doubt. In an application like this one based on affidavit evidence, although the applicant would not be required to specifically set out particulars of fraud, as is done in a pleading by way of a plaint, it is possible for an applicant to plead and prove fraud through affidavit evidence. The averments in the affidavit ought to point out the material facts pointing to fraud or misrepresentation. Pursuant to the provision under Order 19 rule 2 of the CPR, such evidence could be tested through cross examination by the opposite party. The court would, therefore, be in position to have the allegations of fraud tested and proved before it.

[19] In the present case, the only material available is the averment by the applicant that the late Ouma Anania, who was one of the defendants that executed the consent was not owner of the land that he purported to pass on to the 1st respondent through the consent settlement. It is claimed by the applicant that his great grandfather, the late Oyugi Nicodem Owimba had an interest in the subject land. The applicant further claims that the beneficiaries of the late Oyugi Nicodem Owimba that include the applicant and his father, the late Owino Cosmas Onyango, were not made aware of the suit and the eventual consent; which in the applicant's view amounted to connivance and fraudulent concealment of facts.

[20] The facts as alleged by the applicant could have disclosed elements of fraud if they were borne out by evidence. However, beyond the mere allegations as stated above, the applicant adduced no material evidence in order to prove the same. The applicant did not adduce any evidence showing that the late Ouma Anania had no interest in the portion of land subject of the consent settlement; neither did the applicant adduce any evidence showing that his great grandfather, the late Oyugi Nicodem Owimba, had interest in the said land and the nature of interest. Similarly, beyond the mere allegation, the applicant adduced no evidence showing any connivance or collusion between the 1st respondent and the 2nd respondent's predecessor in title. There is also no evidence adduced before the Court showing any fraudulent concealment of facts to which the 1st respondent was party. It is to be noted that all the missing evidential materials that I have alluded to above were capable of being adduced before the Court by way of affidavit evidence. In absence of such evidence, the Court is left with mere allegations of connivance, misrepresentation or fraud; upon which the Court cannot base to vitiate an agreement that was mutually reached and concluded between the parties to it.

[21] Of further critical importance is the question of the long passage of time between when the consent settlement was executed (April 2013) and the filing of this application (March 2024); a period of 11 years. As pointed out by the respondents, some of the parties to the consent have since passed on. The late Ouma Anania was simply one of ten other defendants in Civil (Land) Suit No. 037 of 2005. With such facts, the Court would be greatly constrained by the possibility of offsetting such a status quo. It would only be in the face of clear, definitive and compelling evidence that the Court would do so. There is no scintilla of such evidence in the present case. The interest of justice dictates that this application is rejected for being devoid of merit and not being based on any material evidence. The application is accordingly dismissed with costs to the respondents.

It is so ordered.

*Dated, signed and delivered by email this 24th day of February, 2025.*

**Boniface Wamala JUDGE**