[2025] UGHC 146

# THE REPUBLIC OF UGANDA

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# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

#### **MISCELLANEOUS APPLICATION NO. 0196 OF 2024**

(Arising out of Mubende Misc. Application No. 19 of 2022 and No. 18 of 2022)

(All Arising out of Civil Suit NO. 044 OF 2022 Formerly Mubende Civil Suit No. 002 of $2022)$

| | 1. SSEKYASANKU PATRICK | | | |---------------------------------------|-------------------------------------------|---------------------------------|--| | | 2. SSEKALIGGE RONALD | | | | | 3. KIYIMGI ROBERT | | | | | 4. NAKAMANYIRO TEOPISTA MAGALA | | | | | 5. RTD CAPTAIN GEORGE KAMANDA | | | | | 6. IBRAHIM LUMU (Administrator of the | | | | | estate of the late Mataya Mpanga) | | | | SSEMAKOKIRO MICHEAL (Administrator of | | :::::::::::::::::::: APPLICANTS | | | | the estate of the John Christian Lukanga) | | | | | 7. KULLA TANANSI | | | | | 8. NSIBIRWA MALLE | | | | | 9. ALEENI SSERUMU | | | | | 10. MZEE BACHWA | | | | | 11. KULLA KYEYUNE | | | | | <b>12. SEMBUYA FESTO</b> | | | | | 13. SEBALWANYI SANDE | | | | | | | |

**VERSUS**

LINDA ARONDA PATRICIA OWAMAZIMA ::::::::::::::::::::::::::::::::::::

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## BEFORE: HON. MR. JUSTICE KAREMANI JAMSON. K

#### **RULING**

#### Introduction.

The applicants jointly brought this application under Sections 83 and 98 of the Civil Procedure Act (CPA), Section 33 of the Judicature Act (now S. 37), Order 9 Rule 12, Order 46 Rule 1 (a) (b), 2, 3(1) (2) (4)(6) & 8 and Order 52 Rules 1 & 3 of the Civil Procedure Rules (CPR), against Linda Aronda Patricia Owamazima (herein after referred to as the respondent) seeking for orders that;

- 1. The respondent's interim order issued on the $10^th$ day of February, 2022 vide High Court Mubende Misc. Application No. 19 of 2022 Linda Aronda Patricia Owamazima V Kulla Tanansi and 6 others be reviewed by this honourable court - 2. The consent endorsed by the $8^{th}$ to $14^{th}$ applicants on $5^{th}$ July 2022 in the High Court Mubende Misc. Application no. 18 of 2022 Linda Aronda Patricia Owamazima V Kulla Tanansi and 6 others be reviewed by this honourable court and set aside. - 3. The respondent pays the costs of this application.

The grounds of this application are set out in the application and the affidavits in support sworn by the $1^{st}$ and $8^{th}$ applicants but briefly are that: -

- 1. The $1^{st}$ to $7^{th}$ applicants were granted a representative order to represent 317 persons who were affected by the actions of the respondent herein on the suit land comprised in LRV 3565 Folio 22 block 711 plots 3 and 7, Singo block 710 plot 19 situate in 3 villages of Kiyuni central, Kyerere North and Kyerere east all of Kiyuni Parish, Gayaza sub-county in Kyankwanzi district. - 2. The $1^{st}$ to $7^{th}$ applicants are persons not having been parties but are person allegedly aggrieved with the orders which were issued in Mubende High Court Miscellaneous Application no. 19 of 2022 and the consent temporary injunction. endorsed by the $8^{th}$ to $14^{th}$ applicants on $5^{th}$ July 2022 vide high court Mubende Misc. Application No. 18 of 2022.

$-$ *Nam*

The interim order in issue was issued on land whose size was not known to the court and the court was mistaken about the size of the of the land and that at the time the land was in possession of the $1^st$ to $7^th$ applicants and the persons they were presenting.

- 3. Before the deputy registrar issued the interim order on $10^th$ February, 2022 in Miscellaneous Application No. 19 of 2022, he did not first visit the locus as required and the order was mistakenly used to affect the $1^{st}$ to $7^{th}$ application plus other persons they are representing who were in possession of the suit land and were not parties to the suit. - 4. Upon obtaining the interim order in Misc. Application No. 19 of 2022, the respondent cleared the same with the Uganda police for implementation and with the help of UPDF soldiers, went onto the land and started grading and erasing gardens and trees of the $1^st$ to $7^th$ applicants' and the persons they were representing and they have since been evicted from the land. - 5. The $1^{st}$ to $7^{th}$ applicants are persons not having been parties but are aggrieved with the orders which were issued in Misc. Application no. 18 and 19 of 2022. - 6. The interim order was wrongly used to cause an eviction of the $1^{st}$ to $7^{th}$ applicants and other persons they are representing yet it was only meant to restrain the $8^{th}$ to $14^{th}$ applicants. - 7. There was no proper service of the Chamber Summons onto the $8^th$ to $14^th$ applicants and the interim order was issued without according them an opportunity to be heard. - 8. The $8^{th}$ to $14^{th}$ applicants did not consent to the temporary injunction order and the Deputy Registrar did not follow the procedure before endorsing the consent nor did they have authorization from the $1^{st}$ to $7^{th}$ applicants and the persons they represent. - 9. By the time of endorsing the consent temporary injunction order, the status quo had changed as the applicants and the people they represent had already been evicted from the suit land. - 10. The consent temporary injunction was endorsed to apply to the suit land which is not in possession of the 8^th to 14^th applicants as the 8^th to 14^th applicants only partly occupy block 710 plot 19 and the rest of the suit land was in possession of the 1^st to 7^th applicants and the people they represent. - 11. That this court be pleased to grant the review orders sought by the applicants.

-Merin

$\mathsf{S}$

The respondent opposed the application and averred as hereunder;

- 1. That the representative order of the $1^{st}$ to $7^{th}$ applicants does not relate to representation in this application but rather to another suit in this court. - 2. That the respondent has never evicted anyone from the suit land as alleged and neither has the respondent ever deployed any soldiers or lawyers to chase any one from the suit land as it was consented to in the main suit that the status quo be maintained. - 3. That the $8^{th}$ to $14^{th}$ applicants were present in court when the said consent was entered and endorsed by the court. - 4. That the measurements of the suit land were clearly indicated on the certificates of title and the $8^{th}$ to $14^{th}$ applicants were in court represented by their lawyer there was no right to a fair hearing that was violated as it was their choice to come to court at all material times. - 5. That the applicants are misleading the court in stating that Civil Suit No. 044 of 2024 is proceeding by way of representative order which is not the case. - 6. That this application is incompetent, an abuse of court process and ought to be dismissed.

In rejoinder, the $1^{st}$ applicant contended that the applicants would raise a preliminary objection that the respondent's affidavit in reply is incurably defective for purportedly sworn to be replying to two independent affidavits sworn by the 1^st and 9^th applicant. That the representative order was obtained for purposes of the current application. Further that the respondent and her deceased husband were not using the suit land and she only came thereon upon the death of her husband and the office of the prime minister sent food relief to the families that were evicted from the suit land. that there is no evidence to show that the $8^th$ to 14^th respondents ever consented to the temporary injunction order as the same was purportedly signed by lawyers on their behalf without their consultation.

#### Background.

The brief background of this application is that respondent sued the 8^th to 14^th applicants vide Civil Suit No. 044 of 2022. The respondent in that suit sought several orders including a declaration that she is the registered proprietor of land comprised in Block 711 Plot 3, Block

$\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

710 Plot 19, Block 711 Plot 7 Mubende District and Plot 5 Block 709 Kiboga district, a declaration that the applicants/defendants are trespassers on the suit land, a permanent injunction restraining the applicants/defendants from interfering with any activity on the suit land by the respondent/plaintiff, demolition of illegal structures on the land constructed by the applicants, vacant possession and eviction orders, punitive, general damages and costs of the suit.

Out of Civil Suit no. 0044 of 2022, the respondent filed Miscellaneous Applications No. 18 and 19 of 2022 which were for temporary and interim injunctions respectively. On 10.02.2022, this court granted an interim order restraining the $8^{th}$ to $15^{th}$ applicants from trespassing, selling or interfering with the farm projects on the suit land until final determination of the main application.

On 05.07.2022, a consent order was entered and endorsed in Miscellaneous Application No. 18 of 2022 between the respondent and the $8^{th}$ to $14^{th}$ respondents maintaining the status quo of the suit land. It was agreed that the respondent remains and continues operating in the area of her farm project and the $8^th$ to $14^th$ applicants also continue operating in their respective bibanja and that they should not be evicted.

It is upon that background that the applicants herein bring this application contending that the $1^st$ to $7^th$ applicants are affected by the interim and temporary consent orders yet they were not party to the same. That the $8^{th}$ to $14^{th}$ applicants also challenge the consent temporary injunction order and seek that both orders be reviewed and set aside.

# Representation

The applicants were represented by Mr. Sserunkuuma Bruno of $M/S$ G W Bwanika and Co. Advocates while the respondent was represented by Mr. Okong Innocent of KOB Advocates & Solicitors.

Both parties have filed written submissions which have been considered in determination of this application.

Mar

In the submissions of the learned counsel for the applicants, he abandoned the first prayer that was made for setting aside the interim order issued on the 10^th day of February, 2022 vide Misc. Application No. 19 of 2022 as the same was overtaken by events.

Indeed, an interim order is intended to maintain the status quo until the main application for a temporary injunction is disposed of. Since the temporary injunction vide Misc. Application no. 18 of 2022 had been concluded, it follows that the interim order automatically ended. The request to abandon the first prayer for an order to set aside the interim order was allowed with no costs in that respect.

# **Issues for determination**

- 1. Whether the consent temporary injunction orders in Miscellaneous Application No. 18 of 2022 should be reviewed and set aside. - 2. What remedies are available to the parties?

# The Law

Applications for review and setting aside of decrees and orders are governed by the provisions of Section 82 of the Civil Procedure Act (CPA) Cap 282 and Order 46 rules 1 and 2 of the Civil Procedure Rules (CPR).

# Section 82 of the CPA provides-

"Any person considering himself aggrieved-

- a) By the 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...

may apply for review of the judgment to the court which passed the decree or made the order..."

The grounds which an applicant must prove as affirmed in the above provisions and confirmed by the courts of law are that;

$\mathcal{M}$ - a) There is a mistake or manifest error apparent on the face of the record. - b) There is a discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - c) Any other sufficient reason exists.

See: Attorney General and Anor V James Mark Kamoga and Anor SCCA No. 8 of 2004, Ladak Abdul Mohammed Hussein V Griffiths Isingoma Kakiiza SCCA No. 08/1995.

**Resolution of issues**

1. Whether the consent temporary injunction orders in miscellaneous application no. 18 of 2022 should be reviewed and set aside.

The general principle of the law is that a court becomes functus officio upon passing a decree or order and cannot revisit the same.

However, there are exceptions and the law permits the same court to revisit its decision in form of review. This is done based on different reasons advanced under the law. See Section 82 of Civil Procedure Act and O 46 Rule 1(1) of Civil Procedure Rules.

A review of a decree or an order means re-consideration of the decree or order by the court which passed the decree or order. The court which passed the decree or order examines or studies the facts again and finds out whether the decision should be maintained as it is or there are matters to adjust, rectify or change. Upon re-examination of the judgment or ruling, another ruling is made pronouncing the outcome of that re-examination.

The supreme court in Attorney General and Anor V James Mark Kamoga and Anor (supra) noted that the provisions of Order 46 Rule 1 of the CPR are so broad that they are applicable to all decrees including consent decrees. That the crucial issue for determination is whether there was sufficient reason for reviewing or setting aside the consent judgment.

Mam

The principle upon which the court may interfere with a consent judgment or order was outlined by the Court of Appeal for East Africa in Hirani V Kassam (1952) EA 131 in which the court approved and adopted the following passage from **Seton on Judgments and Orders**, $7^{th}$ ed., Vol.1 p. 124:

"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. "

Further, in the case of Mohamed Allibhai V W. E Bukenya and another SCCA No. 56 of $1996$ , the court stated;

"It is a well settled principle that a consent decree has to be upheld unless it is vitiated by reason that would enable court to set aside an agreement, such as fraud, mistake, misapprehension or contravention of court policy."

I am also inclined to add to the above that the reasons that would enable court to set aside a consent judgment is not only limited to instances of fraud, mistake, misapprehension and contravention of court policy but includes any sufficient reason for which the court in its discretion and wisdom considers fit and proper to set aside that consent judgment.

Further, it is my considered view that limiting the reasons that would enable court to set aside a consent judgment to particularly those mentioned above as submitted by counsel for the respondent would limit the discretion of a court to determine what amounts to "any sufficient" reason" depending on the circumstances of each case.

I am fortified in my holding by **S. 37 of the Judicature Act** and the decision of the Supreme Court in the case of Byaruhanga & Co. Advocates V UDB SCCA 02/2007 and in Neville James Stevens -V- Sandra Stevens HCMA NO. 368/2016.

war

It is trite law that parties to a suit may at any time enter into a consent disposing off any suit or part of the suit. The said consent is guided by the law of contract. The consent or agreement upon being endorsed by court becomes the judgment or ruling. See: order 25 rule 6 of the $\mathbf{C}\mathbf{P}\mathbf{R}$

In the case of **Linda Lucia V Nakandi and Anor Misc. application no. 464 of 2019** where the criteria for setting aside a consent judgment or order was laid down.

In that case, the court stated that the applicant must satisfy that;

1. He or she is an aggrieved person.

2. There is sufficient reason for setting aside the impugned consent judgment or order. Sufficient reason being any of the grounds for setting aside a consent judgment or order.

### a. Whether the applicants are aggrieved person.

Counsel contended that the 1^st to 7^th applicants are persons were not party to miscellaneous application no. 18 of 2022 but were affected by the orders granted therein.

#### Analysis.

An aggrieved person was defined in the case of **RE Nakivubo Chemist (U) Ltd [1979] HCB** $12$ as:

"any person who has suffered a legal grievance and, as such may be a party to a suit or any third party."

From the submissions of learned counsel for the applicants and the affidavit in support sworn by the 1^st applicant, it shows that upon obtaining the interim order in Misc. Application No. 19 of 2022, the respondent proceeded to the suit land and cleared the $1^st$ to $7^th$ respondents' crops and gardens and those of the people they represent. That by the time the purported consent temporary injunction was entered, the status quo prevailing was of destroyed of gardens for which they are now aggrieved.

The respondent states that she did not evict any one from the suit land, the applicants through the affidavit in rejoinder brought evidence to show that indeed there was an eviction that took place on the suit land by the respondent. This is evidence by the several correspondences from

wan

the ministry of lands and state house anti-corruption unit in which the applicants' issue of being evicted from the suit land was inquired into and reported about. (annexures 'B' and $'D'$ ).

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Furthermore, the office of the Prime Minister also responded to the alleged eviction by delivering food relief for families that had been evicted from the suit land as per annexure 'C' to the affidavit in rejoinder.

According to the case of **Adonia v Mutekenga** [1970] EA 429 Spry J. A stated that the right to apply for review is not restricted to the parties but is available to any person considering himself or herself aggrieved. That in that case though the order was not made against the respondent it operated against him making him an aggrieved person.

Basing on the above position, it is my finding that whereas the $1^{st}$ to $7^{th}$ applicants were not a party to Misc. Application No. 18 of 2022, they have proved that order granted in the application referred to above affected them. They therefore are aggrieved parties.

# b. Whether there are grounds or sufficient reasons for setting aside the consent temporary order in Misc. Application no. 18 of 2022

The position of the law is that the grounds for vitiating a consent judgment must relate to the conduct of the parties during execution of the same. see: Musisi Nakibinge and Ors V Kikulwe Ahmed HCMA No. 775 of 2024.

The learned counsel for the applicants submitted that the consent temporary injunction order was granted without proper procedure and without the consent of the $8^{th}$ to $14^{th}$ applicants and therefore ought to be set aside. That the said consent was signed by the 8^th to 14^th applicants' lawyer and the lawyer of the respondent but the said parties themselves never signed anywhere and neither were they properly served with the summons for hearing of the application on that day.

Upon perusal of the consent order in Misc. Application no. 18 of 2022, I found out it was signed by counsel for both parties and then endorsed by this court. The parties to the application never signed the consent personally.

a wan

What needs to be answered therefore is whether the omission of the parties themselves of not signing the consent order is sufficient ground to set the consent order aside or whether there was any improper procedure in reaching the said consent.

#### Order 3 rule 1 of the CPR provides that;

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"Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his or her recognized agent, or by an advocate duly appointed to act on his or her behalf; except that any such appearance shall, if the court so directs, be made by the party in person."

The $8^{th}$ to $14^{th}$ applicants do not dispute the fact that they had appointed a one Mr. Musana Moses as their advocate to represent them in Miscellaneous Application No. 18 of 2022.

It is trite law that when one appoints an advocate to represent him or her, that advocate acts for an on behalf of that party unless the said party expressly shows that he or she has withdrawn instructions from the said advocate. As a matter of fact, a matter can proceed in the absence of a party when the said party is legally represented by an advocate.

The practice has been that parties should endorse the consent. A consent is contract that turns into a judgment upon being endorsed by court.

In Friedhelm Erwin Jost & Anor versus ROKO Construction Limited & 2 Ors MA No.0089 of 2021 at Commercial Division unreported it observed by Hon. Justice Mubiru that standing alone, a settlement agreement is nothing more than a contract. A settlement agreement is the parties document. That it reflects whatever the parties have agreed to.

In my own view it would have been procedurally right for the learned Deputy Registrar to summon all parties to the application and confirm whether they were agreed to the terms of the consent or not. Failure to do so is not unlawful but it is irregular and may lead to the consequences like the ones at hand.

I take judicial notice of the fact that many times some advocates have entered consent judgments and orders without instructions from their clients to their detriment and it occasions miscarriage of justice.

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In my view in such circumstances court may review such a consent judgment and allow parties to participate. This is the case for the $8^{th}$ to $14^{th}$ applicants who did not endorse the consent. The consent injunction order entered on behalf of 8^th to 14^th applicants by their advocate is reviewed and set-aside.

As for the $1^{st}$ to $7^{th}$ applicants they are aggrieved with the consent injunction order entered by the respondent and the 8^th to 14^th applicants in which they were not a party but it affected them. The same has already been reviewed and set-aside. It accordingly stands reviewed and set-a side in respect of the $1^{st}$ to $7^{th}$ applicant.

## $Costs$

$\overline{a}$

Given the circumstances of their case where the consent was entered by court, each party will bear its own costs.

## **Remedies:**

- 1. The consent injunction order in **MA. 18 of 2022** is hereby reviewed and set-aside. - 2. Each party to bear its own costs of this application.

Wam' KAREMANI JAMSON. K

JUDGE $04/04/2025$

**Court:** Dated, signed and delivered by email this $4^th$ day of April. 2025

11 ANN

KAREMANI JAMSON, K **JUDGE** $04/04/2025$