Akello & Others v Egole & 7 Others (Miscellaneous Application 105 of 2024) [2025] UGHC 12 (17 January 2025)

# 5 **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA**

# **MISCELLANEOUS APPLICATION NO. 105 OF 2024**

**ARISING FROM MISC. APPLICATION NO. 065 OF 2015 (ARISING FROM HCCS NO. 006 OF 2011)**

**AKELLO BETTY & OTHERS………………….…………………. APPLICANTS**

# **VERSUS**

**1. EGOLE LAWRENCE EMMY**

# 20 **2. OGANG PETER**

- **3. ONGIA JOHN FRANCIS** - **4. OKELLO AWANY JULIUS PETER** - **5. NYANGA JOLLY GEORGE** - **6. ATIM VICKY** - 25 **7. AKELLO SCOVIA ABED** - **8. GRACE AKULLO LIRA.……….……………………….. RESPONDENTS**

## 30 **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

# **RULING**

This is an application for review of the consent order executed in Miscellaneous Application No. 065 of 2015 between the respondents and the Attorney General. The Attorney General is not a party to the present Motion. The consent was endorsed by this Court (Dr. Nabisinde J) on 18

40 December, 2015. By their consent, the Attorney General agreed that the respondents be added to HCCS No. 006 of 2011 as plaintiffs. That suit was


5 lodged in a representative capacity by Akello Betty suing the Attorney General on her own behalf and on behalf of 580 others.

The background facts are that the applicant and Obua Sam (who is no longer a party) lodged HCCS No. 006 of 2011 against Government of

- 10 Uganda. They obtained a representative order which allowed them to sue. The names of 580 individuals are contained in annexure A to the plaint. However, before the trial could commence, Obua withdrew from the case and his name was accordingly struck out by the trial Judge. By the suit, the applicant sought to recover compensation for herself and her - 15 colleagues. She averred that she and colleagues lost cattle, goats, other livestock, and generally property during the insurgency that gripped Lango Sub-Region in 1986-2006. The region suffered due to the rebel activities of Alice Lakwena under the Holy Spirit Movement, and the Lord's Resistance Army rebel activities of Joseph Kony. In between these 20 activities were cattle rustling by members of a neighboring community. The applicant, therefore, alleged that Government failed in its constitutional duty to protect people, lives, and property. She alleged that Government soldiers took livestock but refused to return to the former owners. She anchored the suit in detinue and breach of constitutional 25 duty.

- 5 The matter was tried by Byabakama Mugenyi, J (as he then was). In court's Judgment delivered on 02 May 2014, the court found for the applicant and colleagues. They were each awarded general damages of shs. 4,000,000 and exemplary damages of shs. 1,000,000. Court further ordered that the plaintiff and beneficiaries were to be compensated for the lost livestock. - 10 Each head of cattle is to be compensated at shs. 900,000. Court also awarded compensation of shs.150, 000 per goat; shs. 160,000 per sheep; and shs. 250,000 per pig. Court based on a verification list which was received in evidence and marked PE1 which was said to represent the number of all claimants. The exhibit was stated by a witness (PW4) to be - 15 a product of a consent executed on 09 November, 2011 between the applicant (as plaintiff) and the Attorney General. A decree was extracted embodying the Judgment and endorsed by the trial Judge on 18 August, 2014. - 20 In their application filed in December, 2015 to be added to the concluded civil suit, the respondents averred that they are beneficiaries of the decree. They alleged that there was a lot of interference with the execution of the decree by third parties. They claimed that there were persons who had opened bank accounts with a view to receiving the fruits of the decree. The 25 respondents also alleged that the present applicant failed to adequately represent their interests. They prayed to be added so as to defend their alleged interests.

The Attorney General consented to the application. In fact a Principal State Attorney had sworn an affidavit agreeing that the application be granted. The affidavit is dated 17 December, 2015. The Attorney claimed that the respondents are beneficiaries of the decree having received judgment in

- 10 their favour following the representative suit. The deponent went on to depose on a matter of law that a person on whose behalf or for whose benefit a suit is instituted or defended may apply to court to be made a party to the suit. The Attorney, therefore, concluded that, adding the respondents who were "plaintiffs" in HCCS No. 006 of 2011 would not 15 prejudice the Attorney General in any way or affect or alter the decision of - the court as embodied in the decree. It is on the basis of the concession that the impugned consent was executed.

In the present Motion, the applicant's prayer is that the consent order in

20 M. A 065 of 2015, signed and dated 18 December, 2015 and "subsequent orders" arising therefrom, be reviewed and set aside. That, the original parties as they appear in the Judgment and the decree in Civil Suit No. 006 of 2011, be retained. And, that costs of this application be provided for.

The grounds of the application, in summary, are that, in the original suit, the applicant sued in a representative capacity on her own behalf and on

- 5 behalf of "over 44,936 claimants". That, the respondents are, by virtue of the public offices they hold, highly conflicted, and, therefore, cannot adequately represent the interests of the applicant and over 44,936 claimants. That, having discovered the various portfolios held by the respondents, there is thus a new and important matters previously 10 overlooked by excusable "misfortune" such as the high conflict of interest - which warrants review of the consent order. The applicant asserts that Egole Lawrence Emmy (1st respondent) is Resident City Commissioner Lira, the second (Ogang Peter) is a civil servant; the third respondent (Ongia John Francis) is a Colonel in the Uganda Peoples Defence Forces; - 15 the fourth (Okello Awany Julius Peter) is a civil servant; the fifth respondent (Nyanga Jolly George) is Gombolola Internal Security Officer Lira; Atim Vicky is District Woman Councilor of Loro Sub-County in Oyam District Local Government; the 7th respondent (Akello Scovia Abed) is a civil servant; and the 8th respondent (Grace Akullo Lira) is also a civil 20 servant.

In her affidavit, the applicant repeats the averments in the Motion and continues that, unless reviewed and set aside, the claimants/ beneficiaries and herself stand to suffer irreparable damage arising from an unjust 25 consent order.

5 Two opposing affidavits were sworn for the respondents. Namanya Joan, an Advocate of c/o M/s Cumberland Advocates stated that she practices law with M/s Bashasha & Co. Advocates. She deposes that she is well versed with all facts pertaining to the application and related matters. She asserts that the application is incompetent, malafide, frivolous and 10 vexatious, and instituted in bad faith. It is forum-shopping, and an abuse

of court process. She warns that a preliminary objection would be raised.

Expounding on her claims, Ms. Namanya deposes that, the application is incompetent because it omits to include the Attorney General a party to 15 the consent order which is sought to be reviewed/ set aside. That, the application is brought after inordinate delay, and in bad faith to frustrate the court execution process. Ms. Namanya denies that there is discovery of new and important matters of evidence. She states that the impugned consent has always been available since 18 December, 2015 and might 20 have been discovered had the applicant exercised due diligence. That, the applicant has always been aware of the consent and was agreeable to it. That, the addition of the respondents to the suit was lawful. That, the applicant has no monopoly over the representative claim. She further asserts that there are over 40,000 decree-holders or beneficiaries to the 25 court decree. She claims there are over 40,000 claimants who instructed M/s Bashasha & Co. Advocates to pursue compensation for livestock and

5 other property lost during war in Lango Sub-Region. That, a verification of the claimants was done, the suit was tried, and judgment given.

Ms. Namanya further deposes to circumstances which led to the respondents lodging of the application pursuant to which the consent 10 order was entered. She also explains circumstances of the subsequent applications that followed the consent execution. She paints a picture of how the applicant and third parties have allegedly been interfering with the realization of the fruits of the decree. Ms. Namanya claims that the applicant and her lawyers have been fraudulently seeking to realize 15 payments meant for other beneficiaries. That, the applicant wants the money paid directly to her personal bank account. That, the current

counsel for the applicant has been involved in touting and has filed several frivolous and vexatious applications.

- In further opposition, Ongia John Francis (the 3rd 20 respondent) deposed an affidavit. He repeats the objections raised by Ms. Namanya. Mr. Ongia claims that the Applicant is no longer his representative and does not represent other claimants. He states that in 2010, he and others instructed M/s Bashasha & Co. Advocates to file a representative suit for 25 compensation from Government. That, by a court order, a verification of - claimants was done and he and the other claimants were ascertained as claimants and the suit was heard and determined. That, several claimants - 5 await payment from Government and all the paper work has been completed by Government. Mr. Ongia goes on to depose to other similar matters stated by Ms. Namanya. He thus attempts to demonstrate how the applicant and other unscrupulous persons have been allegedly frustrating the court execution process. Mr. Ongia says it was for that reason that he - 10 and the co-respondents applied to be added. He emphasizes that he and the co-respondents were among the 4,000 claimants who "commenced the representative suit in 2011". Mr. Ongia denies that at the time the suit was filed in 2011, he and his colleagues held any government offices. He denies that there are new or important matters of evidence over-looked by court - 15 that should warrant review of the consent. He concludes that there is no basis for setting aside the consent Judgment.

## **Appearances**

When the matter first came up in court on 29 October, 2024, Mr. Idambi 20 Paul appeared for the respondents while Mr. Omara Tonny held brief for Mr. Odoo Simon Peter, for the Applicant. Mr. Idambi prayed for adjournment to enable his clients lodge affidavits in opposition. Court granted the adjournment. The application was subsequently fixed for 27 November, 2024. Mr Idambi was absent for the respondent but Mr. Odoo 25 appeared for the applicant. Mr Odoo prayed to proceed ex parte under O.9 rule 20 (1) CPR. Court allowed him to proceed. He made brief submission and prayed that the application be allowed with costs.

## **Issue and court resolution**

The main issue is whether the applicant has made a case for review and 10 or setting aside of the consent order.

The application was commenced under section 82 and 98 of the Civil Procedure Act Cap 282 (CPA); Order 46 rules 1 (1) (a), 4, and 8 of the Civil Procedure Rules S.1 71-1 (CPR).

Review, according to Black's Law Dictionary, 9th Ed. page 1434, means, consideration, inspection, or re-examination of a subject or thing. It connotes a judicial re-examination of the case in order to rectify or correct grave and palpable errors committed by court in order to prevent a gross 20 miscarriage of justice. See: **John Imaniraguha Vs. Uganda Revenue Authority, Misc. Application No. 2770 of 2023**.

Power of review can be exercised for correction of a mistake and not to substitute a view. Review powers must be exercised within the limit of the 25 statute dealing with the exercise of the power. In the exercise of review jurisdiction, it is not permissive for an erroneous decision to be reheard and corrected. An erroneous decision can be corrected by a higher court


5 on appeal and not through review by the very court that issued the decision. However, an error apparent on the face of the record can be corrected by exercise of review jurisdiction. Review jurisdiction is thus not an appeal in disguise. A court cannot review its judgment because it has come to a different conclusion on further argument and further 10 consideration. The effect of allowing an application for review of a decree or order is to vacate the decree/ the order passed. The decree/order that is subsequently passed on review, whether it modifies, reverses or confirms the decree/order, is a new decree/order superseding the original

one. See **Mulla the Code of Civil Procedure Act V of 1908, 16th Ed. p.** 15 **4105-06.**

Section 82 of the CPA confers an unfettered right to apply for review. This was underscored by the Kenyan Court of Appeal in **Kimita & another Vs. Wakibiru [1967-1985] 1 E. A 229** in its interpretation of the equivalent of 20 the Ugandan section 82 of the CPA.

A person applying for review must be a person who is aggrieved by a decree or order of the High Court. It could be the order of the Judge or the registrar of the court as a registrar is an officer of the court. In **Attorney**

25 **General & Uganda Land Commission Vs. James Mark Kamoga & James Kamala, Civil Appeal No. 08 of 2004**, Mulenga JSC stated that review

5 jurisdiction is specifically applicable to decisions made in the High Court proceedings.

There is thus no doubt that the order or decree that is reviewable may be that from which an appeal is allowed by the CPA but where an aggrieved

10 person has decided not to appeal. It may also be a decree or order from which an appeal is not allowed, for example, consent decree/order, which is not appealable under section 67 (2) of the CPA.

An applicant for review must, however, satisfy one of the three conditions 15 stated in O.46 r. 1(1) CPR, namely, discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge; mistake or error apparent on the face of the record; or any other sufficient reason which must be analogous to the first two grounds above. In fact, Barishaki J. A observed in **The Administrator of**

20 **the Estate of the Late George William Kabugo Vs. Dr. Twinobuhugiro & 2 Others, Civil Appeal No. 55 of 2016**, that, O.46 r.1 operationalizes section 82 of the CPA.

A person seeking review must be a person aggrieved. That is, a person who 25 has suffered a legal grievance. See: *Re Nakivubo Chemist (1979) HCB 12*; **Mohamed Allibhai Vs. W. E Bukenya Mukasa & Another, SCCA No. 56 of 1996**. In *Ex Parte Side Botham in Re Side Botham (1880) 14 Ch. D*

- 5 *458 at page 465*, Lord Justice James noted that a person aggrieved does not really mean a man who is disappointed by a benefit which he might have received if no other order had been made, but must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongly - 10 affected his title.

Be that as it may, it should not be lost on court that the phrase 'person aggrieved' is of wide import. Thus the definitional attempts in the Re Side Botham case should not be regarded as exhaustive. Lord Esher M. R 15 explored that point in **Ex Parte Official Receiver in Re Reed Bowen &**

- **Company**, and was cited with deference by Lord Denning in **The Attorney General of Gambia Vs. N'jie (1961) AC 617 at 634**. It was opined that, the words 'person aggrieved' are of wide import and not subject to a restrictive interpretation. The phrase 'person aggrieved' of course do not 20 include a mere busy body who is interfering in things which do not concern him/her. The term encompasses a person who has a genuine grievance because an order has been made which prejudicially affects his/her interests. - 25 In the instant matter, a preliminary issue has been raised by the respondents. They aver that leaving out the Attorney General from the

5 present action is fatal. This is on the backdrop that the consent was executed between the respondents and the Attorney General.

In my view, I find the objection well taken albeit not argued as the respondents did not bother to attend the court hearing. That said, being a

- 10 party to the consent, this court cannot be seen to adjudicate the application in the absence of the Attorney General. To purport to hear the application would tantamount to condemning the Attorney General unheard. It would thus run counter to article 28 (1) and 44 (c) of the Constitution, 1995 which protects the right to fair hearing. In **Dison** - 15 **Okumu & 8 others Vs. Uganda Electricity Transmission Company Ltd & 6 others, Civil Appeal No. 18 of 2020**, the Supreme Court upheld the court of appeal decision to the effect that the suit could not be maintained since the omitted parties would be condemned unheard contrary to the stated constitutional provisions. There, the Attorney General and 1500 20 former employees of UEB were left out of the suit by which the appellants had sought to set aside court orders in which the Attorney General and the 1500 others had been parties.

Accordingly, and as guided by the authorities, I find that omitting the 25 Attorney General from the present action renders the application for review and setting aside the consent judgment bad. It is accordingly struck out.

5 The above holding, notwithstanding, I have, for completeness, decided to consider the merits of the application.

I start by posing the question: Is the applicant and her colleagues persons aggrieved by the consent order? The applicant's main contention, as noted,

- 10 is that the respondents are conflicted. The applicant does not, however, demonstrate how impleading the respondents as plaintiffs to the decree, however erroneous it appears, stood to deprive her and colleagues their share in the fruits of the decree, if any. As I noted, from the pleadings leading to the impugned consent, I think the Attorney General of the time - 15 believed that the respondents were part of the beneficiaries in whose favour a representative order was obtained and that, therefore, the respondents could apply as of right to be made plaintiffs under O.1 rule 8 (2) of the CPR and thus benefit from the decree. O.1 rule 8 which has since been amended (in 2019 by S. I 33 of 2019) provided:

*"Any persons on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) of this rule may apply to the court to be made a party to that suit."*

25 Having perused the plaint, especially paragraph 3, I have noted that the respondents were not part of the 580 individuals on whose behalf or for whose benefit the representative order was obtained and the suit

- 5 instituted. Thus strictly applying the law but of course without prejudice to the respondents, I think the respondents could not competently apply to be added plaintiffs within the four corners of O.8 r.1 (2) CPR. However, given that the Attorney General has not complained, and seems happy with the status quo, this court cannot discuss the point beyond the limited - 10 observations.

Having noted that the respondents' being added to the decree does not, on evidence, appear to deprive the applicant and her colleagues of their entitlements under the decree, I find that the applicant (and her 15 colleagues) cannot be said to be aggrieved by the consent order. This finding suffices to dispose of the matter. However, given that the ground of discovery of new and important matter of evidence has been canvassed, I next consider it.

- 20 It is settled law that the discovery of new and important matter of evidence must have followed the exercise of due diligence, and that the new and important matter of evidence was not within the applicant's knowledge or could not be produced by the applicant at the time the order sought to be reviewed was made. Courts have clarified that when a review is sought on - 25 the ground of discovery of new evidence, the evidence must be relevant and of such a character that if it had been given in the suit, it might possibly have altered the judgment. **See: Re Appa Rau (1887) 10 Mad 73**;

- 5 **Nandalal Vs. Panchanan (1918) 45 Cal 60**; **Ramaswami Vs. Shanmuga (1959) 2 MLJ 201**. These decisions interpreted O.47 r.1 of the Indian Code of Civil Procedure which was similar to the Ugandan O.46 r.1 CPR. See **Mulla the Code of Civil Procedure Act V of 1908, 16th Ed. p. 4115**. - 10 Application for review on the basis of discovery of new and important matter of evidence must be treated with great caution. Court must be satisfied that the material placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. See: **Chiranjilal Vs. Tuhiram (1920) 47 Cal 568**. An Applicant arguing the 15 ground of discovery must also show that he/she acted with due diligence - and that the existence of the evidence was not within his/her knowledge. See: **Naminath Vs. Govind Rao AIR 1960 Mys 214**; **Subhan Singh Vs. Rukma Bhai AIR 1935 Mad 768**; **Pyarelai Vs. Chholey Lai AIR 1942 All 82.**

In the present matter, I have noted the claim regarding the alleged discovery. It is that the respondents were at the time of the consent, public servants. With respect, the claim is not proved. The relevant letters or instruments of their appointments into public offices or documents of the 25 like purport, were not adduced in evidence by the applicant. The respondents roundly reject the allegation meaning the burden was on the applicant to prove her claims. The respondents state through the affidavit

- 5 of Ongia that, they became public officers much later not at the time they entered into the impugned consent. I should add that even if the applicant's allegation were true, I do not see how the respondents' various portfolios as public officers stood to deprive the applicant of the fruits of the decree. I do not, therefore, think being public officers ought to prevent - 10 the Attorney General from consenting with public officials who might have arguable claims. I would thus find the allegation immaterial. There is, at any rate, no indication that the applicant exercised due diligence so as to be able to discover the alleged new evidence. In closing, therefore, whereas a consent order/decree is capable of being reviewed as aptly settled in - 15 **Attorney General & Uganda Land Commission Vs. James Mark Kamoga & James Kamala, Civil Appeal No. 08 of 2004**, I do not think the applicant comes within the province of the law.

The applicant also rests her motion on section 98 of the CPA. As noted, 20 she seeks for an order setting aside the consent order. Although this ground was not strongly argued, I will nevertheless resolve it.

Consent orders are first of all regulated by O.25 r.6 CPR. The scheme of O. 25 rule 6 is to avoid multiplicity of litigation and to permit parties to 25 amicably come to a settlement which is a lawful and voluntary act of the parties. Once a consent decree/ order is endorsed by court, certain rights come to be vested in the person in whose favour the decree/order is


5 passed. It is thus incumbent on court to ensure that the agreed compromise or agreement is lawfully effected and finality attached to it as a court can never impose a compromise on an unwilling party. See: **Olara**

**Vs. Omony, Misc. Application No. 01 of 2022** (Okello J).

- 10 Consent order has contractual and binding effect and the legal consequences of recording and passing it is that the order is passed on a new contract between the parties, therefore, superseding the original cause of action. See: **Hirani Vs. Kassam (1952) 19 EACA 131**. This view appears to trace its origin and finds support in the literary works of **Chitty** - 15 **on Contracts, 26 Ed. Vol. 1.** It is thus settled law that consent order can only be set aside on grounds which would justify the setting aside of a contract. See: Hancox J. A in **Wasike Vs. Wamboko [1982-88] KAR 625, at p.626**. Thus according to **Seaton on Judgments and Orders 7th Ed, Vol. 1, page 124** it was stated:

**" Prima facie, any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings or action, and on those claiming under them… and cannot be varied or discharged unless obtained by fraud, or collusion, or by an agreement** 25 **contrary to the policy of the court or if consent was given without sufficient material facts, or in misapprehension or in ignorance of**

5 **material facts, or in general for a reason which would enable the court to set aside an agreement."**

In **Brooke Bond Liebig (T) Ltd Vs. Mallya [1975] EA 266** the passage from Seaton on Judgments was quoted with approval. The court followed 10 the decision in **Hirani Vs. Kassam (1952) 19 EACA 131** where the passage was equally quoted. The same passage was also referenced by the apex court in **Attorney General & Uganda Land Commission Vs. James Mark Kamoga & James Kamala** (supra).

- 15 In **Waskike Vs. Wamboko [1982-88] 1 KAR 266 (***supra***)** the Kenyan Court of Appeal gave examples of grounds for setting aside a contract such as fraud, mistake, or misrepresentation. The Court stressed that it would not readily assume that a judgment recorded by court by consent was not so unless it was demonstrably shown otherwise. In **Brooke Bond Liebig** - 20 **(T) Ltd Vs. Mallya** (supra), Mustafa, Ag. VP stated that the grounds for setting aside consent judgment are: fraud, collusion, lack of consensus between the parties, public policy, or such grounds as would enable a court to set aside or rescind a contract. Similarly, in **Attorney General &**

**Uganda Land Commission Vs. James Mark Kamoga & James Kamala**

25 (supra), Justice Mulenga observed that a party against whom a consent decree is passed may, notwithstanding the consent, be wrongfully deprived of its legal interest if, for example, the consent was induced through

- 5 illegality, fraud or mistake. The apex court noted that such a person would be aggrieved within the meaning of O.46. The court also opined that the law permits consent judgments to be set aside in appropriate circumstances. And on the facts before the apex court, it was concluded that it had neither been the applicants' case that the consent judgment 10 was obtained through fraud, collusion, or contrary to the court policy nor - was it suggested that the consent was given without sufficient or in misapprehension of material facts.

Applying the elaborate principles to the present matter, I find no single 15 ground that was pleaded and argued on which this court could set aside the impugned consent order. Accordingly, the motion, as anchored in section 98 of the CPA collapses.

In conclusion, for the reasons I have given in this ruling, the application 20 fails and is accordingly dismissed with an order that each party shall bear its own costs given their present some-what similar interests in the decree of court especially following the execution of the impugned consent by the Attorney General.

25 Delivered, dated and signed in court this 17 January, 2025.


## **11: 50 Am**

## **17/01/2025**

## 10

## **Attendance**

Mr. Odoo Simon Peter, counsel for the Applicant in court Applicant (Akello Betty) and some of the represented persons in court Mr. Idambi Paul, counsel for the Respondents present

15 Respondents absent Mr. Esau Opio, Court clerk

**George Okello** 20 **JUDGE**