Katwesige v Nkosi Capital Limited and 7 Others (Miscellaneous Application 2748 of 2023) [2024] UGHCLD 7 (15 January 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO. 2748 OF 2023 ARISING FROM CIVIL SUIT NO. 305 OF 2020**

### **KATWESIGE WINSTON MUNTUKWONKA ::::::::::::: APPLICANT**

### **VERSUS**

### **1. NKOSI CAPITAL LTD**

- **2. JACKIE HELLEN ATUGONZA MUNTUKWONKA** - **3. BUSOBOZI RICHARD MUNTUKWONKA** - **4. MUGUNGU HELAMAN JOHNSON MUNTUKWONKA** - **5. NKOJJO RONALD MUNTUKWONKA** - **6. KABEBA PAUL MUNTUKWONKA** - **7. DUNCAN MURUNGI MUNTUKWONKA (REPRESENTED BY POWER OF ATTORNEY HOLDER BUSOBOZI RICHARD MUNTUKWONKA)** - **8. PATRICK MUSINGUZI MUNTUKWONKA :::: RESPONDENTS**

## **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

# **RULING.**

## *Introduction:*

**1. Katwesige Winston Muntukwonka** herein reffered to as the applicant brought this application against **Nkosi Capital Ltd,**

**Jackie Hellen Atugonza Muntukwonka,Busobozi Richard**

**Muntukwonka,Mugungu Helaman Johnson**

**Muntukwonka,Nkojjo Ronald Muntukwonka,Kabeba Paul**

**Muntukwonka,Duncan Murungi Muntukwonka(Represented**

**By Power Of Attorney Holder Busobozi Richard**

**Muntukwonka) and Patrick Musinguzi Muntukwonka** herein refered to as the respondents Under Article 28(1) of the 1995 constitution of Uganda, Section 33 of the Judicature Act, Section 82 & 98 of the Civil Procedure Act Cap 71, Order 52 rule1&2 of the Civil Procedure Rules SI -71 for orders that;

- **i)** the consent judgment and decree purportedly entered by this Honourable Court on 14th December 2021 between the 1st and 2nd, 3rd, 4th, 5th, 6th ,7th and 8th Respondent be reviewed and set aside, the suit be re- opened and set down for hearing and determination on its merits inter parties, the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Respondents be ordered to refund Ugx 50,000,000 to the 1st respondent. - **ii)** costs of the application.

#### *Background;*

2. The 1st Respondent instituted HCCS No. 305 of 2020 against the Applicant and the 2nd to 8th Respondents for deceit, nuisance, trespass, abuse of legal process, permanent injunction, damages, interest and costs on property situate at plot 12 Martin Road. The 1st Respondent sought orders that;

- i) A declaration that the defendants (now the 2nd,3rd, 4th, 5th, 6th, 7th respondents and the applicant) acts and omissions occasioned nuisance against the plaintiff - ii) A declaration that the defendants trespassed on the suit property. - iii) A declaration that the defendants abused the legal process by using extra judicial means - iv) A permanent injunction - v) General damages, punitive damages and exemplary damages. - vi) Interest, costs and any other relief deemed fit and proper by this Honourable Court. - 3. The 1st Respondent (plaintiff) entered into a consent Judgment with the 2nd,3rd, 4th, 5th, 6th and 7th Respondents (then defendants) which the applicant seeks to be reviewed and set aside on grounds that he was unlawfully excluded from the proceedings of HCCS NO. 305 of 2020, secretly procured a consent judgment by fraud, misrepresentation and concealment of material facts, the applicant's right to a fair hearing was violated and that it is in the interest of justice that the consent judgment be reviewed and set aside.

### *Applicant's evidence;*

- 4. The grounds on which the application is based are contained in the Notice of Motion and affidavit deponed by KATWESIGE WINSTON MUNTUKWONKA, the Applicant and briefly are: - i) That the applicant was unlawfully excluded from the proceedings of HCCS NO. 305 of 2020. - ii) That the Respondents secretly procured a consent judgment by fraud, misrepresentation and concealment of material facts. - iii)That the applicant's right to a fair hearing was violated and that it is in the interest of justice that the consent judgment be reviewed and set aside.

### *1st Respondent's Evidence;*

- 5. The application is responded to by an affidavit in reply deponed by the representative of the first respondent Patrick Kato which briefly states as follows; - i) THAT it is true the Respondent company, had in HCCS No.305/2020, High Court (Land Division), sued the Applicant and his siblings for abuse of court process over the suit land, by channelling disputes over the suit property inter-alia to the office of the Resident City

Commissioner's office instead of Court, contrary to the Constitution which stipulates that all disputes shall be resolved by the Courts of Judicature.

- ii) THAT the court was on 30th June 2020, notified that the Applicant had been dropped as the 8th defendant. - iii) THAT the company has been advised by the in-house counsel, which advice is believed to be true and correct, that the 1st Respondent had a right in law to drop the suit against the Applicant. - iv) THAT it is not true that the attached allocation letter was addressed to the Applicant or bears any stipulation that Vicky Muntukwonka was to "hold the same for the interest and benefit of the entire family…"; instead Vicky Muntukwonka supported the 1st Respondent's Application for interlocutory orders against her children in M. A. No.516/2020 - v) THAT the company has been advised by the in-house counsel, that the Defence was null and void ab initio because it had been filed out of time.

Type text here

- vi) THAT the Applicant does not attach any evidence of the "secretly, hastily and fraudulently entered into Consent judgment/decree". - vii) THAT it is not correct that the Applicant was listed as a party to the Consent Judgment/Decree. - viii) THAT it is not correct that the Applicant was listed as a recipient of the Consent Judgment/Decree sum.

#### *Representation;*

6. The Applicant is represented by Mr. Arthur Katongole of M/s Katongole & Co. Advocates and the 1st Respondent is represented by Mr. Muyanja Jimmy of Muyanja & Associates, Advocates, Solicitors and Legal Consultants. The applicant filed an affidavit in support of his application which was opposed by only the 1st respondent who filed an affidavit in reply whereas the 2nd -8th Respondent did not file any.

#### *Preliminary Objections;*

7. The 1st Respondent filed submissions raising preliminary objections which I shall address below:

#### **i) Incomplete proceedings**

It's the 1st Respondent's objection that this application was not served onto the 2nd – 8th Respondents however Counsel for the Applicant insists on having effected service onto M/s Tumwebaze Atugonza Kobusingye & Co Advocates at Suite 9, Level 2 Ambassador House Plot 56/60 Kampala Road but they declined to accept service.

This Court notes that this preliminary objection raised by Counsel for the 1st Respondent is devoid of merit unless he has instructions to represent the 2nd – 8th respondents. According to the record, the affidavit in reply was filed by the 1st Respondent only and Court has no record or evidence of instructions or any pleading filed by the 2nd – 8th Respondents hence this objection is over ruled.

#### **ii) Effect of failure to serve**

It's the 1st Respondent's submission that they notified Court on 30th June 2020 stating that they had failed to trace Katwesige Winston (applicant and 8th Defendant) hence droping him from the HCC Suit.

However, the same Advocates of Muyanja & Associates, Advocates, Solicitors and Legal Consultants wrote to Court on 1st July 2020 praying for extension of summons to be served onto the 8th Defendant. On 2nd July 2020, the same Advocates wrote to M/s Katongole & Co. Advocates stating that they were notified on 25th June 2020 that they had instructions to represent the 8th defendant (now Applicant) and attached summons to file a defence on the same.

On that basis M/s Katongole & Co. Advocates together with M/s Kityo & Co. Advocates filed the 8th defendant's written statement of defence.

Counsel for the 1st Respondent cannot contend to have **"dropped"** the suit against the 8th Defendant more so without a proper notice.

This Court agrees with Counsel for the Applicant's submission and the authority of **Enoth Mugabi v Palm Development (U) Ltd Miscellaneous Application no.1 0f 2016[2016] UGComm (21 March 2016) in addition**

**to the provisions of Order 25 of the Civil Procedure Rules SI 71 as amended** to note that the suit was not actually withdrawn against the Applicant as regards to proper procedure and the letter addressed to the Registrar purportedly withdrawing the suit against the 8th defendant (Applicant) had no legal effect as it ought to have been served onto the applicant personally or his Advocates.

10. I refrain from discussing the 4th and 5th preliminary objections, to delve into the crux of the matter as its determination has a huge bearing on and or resolves the rest of the objections as raised.

## *Issue for determination by court;*

**i) Whether there is just cause to review and set aside the consent Judgement entered into by the Respondents.**

## *Resolution and determination of the issues***;**

11. The law on consent judgements/ 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 in writing, affix their signatures and place the same for endorsement by the Court *(Order 25 rule 6 of the CPR and the case of Betuco (U) Ltd & Anor V Barclays Bank & others, HCMA No. 243 of 2009 as Cited by Justice Boniface Wamala in Krone Uganda Limited v Kerilee Investments Limited Miscellaneous Application No. 306 of 2019.*

- 12. Once a Consent Judgment is entered, it is a final Judgment and can be enforced like any other judgment however there are grounds based on which it can be vitiated, varied reviewed and or set aside. - 13. Where it is proved that it was entered into without sufficient material facts or in misapprehension or in ignorance of material facts, or it was actuated by illegality, fraud, mistake, contravention of Court policy or any reason that would enable Court to set aside an agreement. *See Attorney General & Uganda Land Commission V James Mark Kamoga & James Kamala SCCA no. 8 of 2004* - 14. The Applicant seeks to have the Consent Judgement entered into by the 1st Respondent and the 2nd – 8th

Respondent reviewed and set aside on grounds that it was secretly procured by fraud, misrepresentation and concealment of material facts and that the applicant's right to a fair hearing was violated.

- 15. I note that the Applicant has not adduced any evidence to prove the fraud, misrepresentation and concealment of material facts, to dupe him into executing a consent judgement with the 1st Respondent since he was not a party to the same. However, what is glaring is that the Applicant's right to a fair hearing was indeed violated by excluding him from the proceedings of HCCS No. 305 of 2020 where by the parties purported to settle the entire suit without his consent as a party to it. - 16. I find that action not legally justified however, Court cannot force parties to litigate if they have opted to settle the matter amicably. The 2nd – 8th Respondents agreed to settle the suit with the 1st Respondent (Plaintiff) at UgShs 50,000,000 (Fifty Million Uganda Shillings) which was deposited on their respective accounts as they were provided. The Applicant was clearly not party to this agreement hence the same does not bind him therefore he can't have the same

set aside due to the principle of privity of contract and on that basis however he can have it reviewed under Order 46 rule 1 (b) of the Civil Procedure Rules.

- 17. The consent Judgement is here by varied and reviewed on grounds that it affects the applicant's interest in the subject property and hence I make the following orders; - i) HCCS NO.305/2020 between the 1st Respondent and the applicant is still pending before this Honourable Court until its determined following the proper procedure as set out in the relevant laws. - ii) The suit between the Applicant and the 1st Respondent shall proceed on its merits. - iii) Costs

Costs follow the event (Section 27(1) of the Civil Procedure Act) and Court has the power to determine who is to be awarded costs.

(**See Kivumbi Paul V Namugenyi Zulah & 2 othrs (Civil Revision 10 of 2014) [2014])**

Owing to the fact that this matter involves siblings that is the 2nd – 8th Respondent and in order not to extenuate relationships, I make no order as to costs. And with

regards to the 1<sup>st</sup> Respondent, costs shall abide the outcome of the pending suit.

Hanlegy

I SO ORDER.

. . . . . . . . . . . . . . . . . . . .

**NALUZZE AISHA BATALA**

## **JUDGE**

15/01/2024