Asiimwe v Mugoya (Civil Appeal 11 of 2024) [2024] UGHC 877 (30 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

CIVIL APPEAL NO. 11 OF 2024 [Appeal from the judgment and orders of H/W Semondo Benson, Magistrate Grade I, Buliisa Chief Magistrate's Court in Land Civil Suit No. 14 of 2019 dated $21^{st}$ day of May, 2019]

**ASIIMWE MEREKI::::::::::::::** \*\*\*\*\*\*\*\*\*\*\*\*\* **HILLING APPELLANT**

#### **VERSUS**

## MUGOYA JACKSON MBABAZI::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

#### JUDGMENT

### **Background**

- The Respondent sued the Appellant in the lower court for orders $[1]$ to compel the Appellant as a village L. C. I Chairperson to sign/endorse for the Respondent his Uganda National Road Authority (UNRA) forms for confirmation of ownership of land, i.e. confirmation that the Respondent is the rightful owner of a plot of land located at Kigoya along Hoima - Butiaba - Wanseko Road that was a subject of compensation from UNRA for the appropriated plot of land. - $[2]$ The Appellant on the other hand denied the Respondent's claims and contended that he acted reasonably and lawfully to refuse to sign for the Respondent the UNRA documents of confirmation of ownership of the plot of land in question because the subject land was under dispute with community members. - On 1.8.2019, the trial magistrate referred the parties $[3]$ $to$ Chairperson Buliisa Bub-County, Mr. Kubalirwa Nkuba for mediation. During the mediation conducted by the said Kubalirwa Nkuba which involved the parties, the Mayor Buliisa Town Council

and the residents of the village, including a member of the Respondent's family, the Appellant accepted to sign/endorse the Respondent's UNRA confirmation of ownership of the plot in question. He later signed the mediation proceedings containing a minute that he accepted to sign the Respondent's UNRA forms. On $21/5/2019$ , the trial magistrate extracted a consent order from the mediation proceedings which he accordingly sealed as an order of court.

- It would appear that after endorsing the mediation proceedings $[4]$ which contained his acceptance to sign the Respondent's UNRA forms, the Appellant refused and or failed to actually sign the document/UNRA forms in question. As a result, the Appellant was served with a notice to show cause why warrant of arrest and imprisonment should not be issued in execution of the order of the trial magistrate. - The Appellant was dissatisfied with the order of the trial $[5]$ magistrate and lodged the present appeal on the following grounds: - That the learned trial magistrate erred in law and fact when $(1)$ he ordered the Appellant/Defendant to sign the Plaintiff's [Respondent's] UNRA forms against his will. - That the learned trial magistrate erred in law and fact when $(2)$ he held the Appellant/Defendant personally liable for the decision of the Local Council I not to sign the Plaintiff's [Respondent's] UNRA forms. - That the learned trial magistrate failed to evaluate the $(3)$ evidence and erroneously compelled the Appellant/Defendant $\mathcal{L}_{\text{out}}$ to sign the Plaintiff's [Respondent's] UNRA forms. $\frac{2}{\pi}$

# **Preliminary point of law**

$\mathcal{L}(\mathcal{L}) \to \mathcal{L}(\mathcal{L})$

Counsel for the Respondent, Mr. Simon Kasangaki, raised a $[6]$ preliminary objection to the effect that the appeal is incompetently filed against a consent order of the lower court.

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This court shall first resolve the preliminary objection. What $[7]$ constitutes a preliminary objection was discussed in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West Land Distributors Ltd [1969] E. A.696 as follows:

"A preliminary objection consists of an error on the face of the pleadings which rise by clear implication out of the pleadings and which, if argued as a preliminary objection may dispose of the suit."

- It follows therefore from the above, that this court is $[8]$ mandated to first resolve the preliminary objection because of its potential to dispose of the instant appeal. - Counsel for the Respondent argued that a party has no right $[9]$ of appeal against a consent judgment or order. That the option of an aggrieved person against a consent order or decree is to apply to set it aside before the court that issued it and if refused, appeal against the order of refusal to set aside the consent order. He relied on AFMC Co-operative Society vs $\mathcal{L}^{\mathcal{L}}$ **Uganda Railway Corporation [2002] EA 1.** - [10] The Appellant on the other hand argued that the order sought to be executed by the Respondent (the gist of the appeal) is not a consent order since it was signed by only the judicial officer in the absence of both parties and was never endorsed or signed by both parties. That the Appellant therefore, rightly appealed against the order of the trial magistrate. - [11] As to whether the mediation proceedings contained a "consent" out of which the trial magistrate extracted the impugned consent order, it is apparent that before the mediation, the Respondent contended that the Appellant on his own volition, maliciously refused to sign for him the UNRA confirmation of land forms that the Respondent is the rightful owner of the part of land due for the Respondent's compensation by UNRA.

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[12] During the conclusion of the mediation between the parties conducted on 23.8.2019 by the mediator Mr. Kubalirwa Nkuba, the mediation proceedings are to this effect:

"Raimon (mediation secretary) asked the mediation chairperson to give both parties a period of ten minutes to privately discuss after when they can come back with an informed decision......

the mediation chairperson..... gave both parties three days to communicate back to him in case any of the ..... had changed their mind before the mediation report is produced.... after two days of mediation, the Kigoya L. C. I Chairperson (Asiimwe Mereki) called him (the Mediation Chairperson) and accepted to sign for Mugoya [the Respondent]. Hence the mediation exercise was pronounced a success".

Thereafter, the parties, the mediation secretary and the mediation chairperson endorsed the proceedings. The trial magistrate on his part, extracted from the mediation proceedings endorsed by both parties a consent order thus:

"A consent judgment is hereby entered in the terms agreed upon by the parties".

- [13] As can be discovered from the mediation proceedings, the terms agreed upon by the parties are the fact of the Appellant (L. C. I Chairperson) accepting to sign for the Respondent the UNRA confirmation of ownership of land forms. - [14] A consent judgment is defined in Halsbury's Laws 3 Edition paragraph 1631 as:

"If either party is willing to consent to a judgment or order against himself or if both parties are agreed as to what the judgment or order ought to be, due effect may be given by court to such consent."

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- [15] In the instant case, I find that the order extracted from the mediation proceedings which were duly signed by the parties containing a minute to the effect that the Appellant had accepted to sign the UNRA confirmation of land forms for the Respondent's compensation amounted to a biding consent judgment and or order. - [16] The endorsement of the mediation proceedings which contained the settlement by the parties supports the consent order the trial magistrate accordingly extracted. The parties having endorsed the mediation proceedings which contained the settlement needed not sign and or endorse the consent order extracted by the trial magistrate. - [17] As rightly submitted by Counsel for the Respondent, the Appellant would in the premises under S.67 CPA have no right to appeal against a consent order, see Namatovu Hadijah vs Kasese Moses & 2 Ors H. C. M. A. No. 59 of 2021. The Respondent as an aggrieved person against the consent order would only have an option to apply to set it aside and not to appeal against the order. In the premises, the preliminary objection will in the premises be upheld and the appeal accordingly dismissed with costs to the Respondent.

Dated at Hoima this 30<sup>th</sup> day of August, 2024.

Byaruhanga Jesse Rugyema JUDGE

$\mathsf{S}$