Kumbaine v Mulunda (Misc Cause 153 of 2021) [2023] UGHCFD 72 (28 February 2023)

# **THE REPUBLIC OF UGANDA IN HIGH COURT OF UGANDA MISC. CAUSE NO.153 OF 2021**

### **(ARISING OUT OF DIVORCE CAUSE NO.86 OF 2017)**

## **KUMBAINE IRENE :::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

## **MULUNDA HENRY ::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **Before: Justice Ketrah Kitariisibwa Katunguka**

#### **Ruling.**

#### **Introduction.**

- 1. Kumbaine Irene (herein called **'the applicant'**) filed this application by way of Notice of Motion against Mulunda Henry (herein called **'the respondent'**) seeking orders; that the consent decree/judgment entered into/between the parties on the 11th day of April, 2018 be reviewed and/or set aside; a declaration that the property comprised in Kyaggwe Block 83 formerly 509 (now plot 1197 and 1996) is owned jointly in co- ownership by the applicant, respondent and a one Okumu David; a declaration that properties described as Kyaggwe Block 83 plot 463, Mukono District constitutes matrimonial property; an order that the properties constituting matrimonial property be shared between the applicant and the respondent; costs be provided for. - 2. The application is brought under section 82 and 98 of the Civil Procedure Act, section 33 of the Judicature Act Cap.13, Order 46 Rule 1, 2 and 8 and Order 52 rule 1 and 3 of the Civil Procedure Rules S. I 71-1. - 3. The grounds of the application are contained in the notice of motion and the affidavit in support deposed by the applicant and briefly that; the applicant and respondent contracted marriage on the 28th day of September, 2013 at Redeemed of the Lord Evangelical Church, Makerere; on the 15th of September 2017, the respondent filed a petition against the applicant seeking dissolution of the marriage, sharing of property and costs; during the pendency of the said petition, the applicant sought an out of court settlement and her then lawyer sent a draft of the terms of settlement for the respondent's consideration; the applicant who was then working in Kenya edited the said draft and forwarded the same to the

respondent who made changes and sent the draft to her lawyer, who in return forwarded the draft to the applicant's lawyer;

- 4. It is the applicant's case that she informed her lawyer that the property comprised in Kyaggwe Block 83 formerly 509 (now plot 1197 and 1996) was owned jointly namely; herself, the respondent and Okumu David; her lawyer who appeared in court on that day did not inform her about the date of hearing but signed a consent different from that which she had earlier rejected and edited; the terms that the applicant consented to and instructed her lawyer to sign are different from the ones signed due to negligence and misrepresentation by the said lawyer against the applicant's will; she prays that the mistake or negligence of counsel should not be visited on her; the consent does not reflect her interests; it is just and equitable that the judgment be reviewed on account of misrepresentation and mistake or error apparent on the face of record and or set aside. - 5. The respondent filed an affidavit in reply in opposition of the application; and contends that whereas he filed Divorce Cause No.86 of 2017 against the applicant; the decision to venture into out of court settlement was initiated by the applicant and embraced by the respondent; the applicant participated in the negotiation of the consent and signed without duress or undue influence. - 6. Further that whereas Block 83 formally 509 now plot 1197 and 1996 was jointly acquired between Henry Mulunda, Kumbaine Irene and Okumu David; the said Okumu David didn't complete his part of the obligation of the purchase price and in 2018, after Kumbaine Irene had deserted the matrimonial home, Okumu David approached the respondent to buy off his interest in the said land which he the respondent did and gave Okumu David a red Honda motorcycle registration number UDB5715 valued at UGX 6,000,000/= (Six million shillings); Okumu David thereafter severed his interest on that basis; it is the respondent's case that at the time of signing this interest, the entire property was owned by the applicant and the respondent.

## **Representation:**

7. The applicant is jointly represented by counsel Samuel Eyotre and counsel Emmanuel Elau of M/s Tumwebaze Atugonza Kobusingye Advocates & Legal Consultants, while the respondent is represented by M/s Barenzi & Co. Advocates; Counsel filed written submissions which I have considered;

# **Issue:**

Counsel framed one issue for court's consideration which I have rearranged for clarity.

# **Whether there is sufficient cause for reviewing or setting aside of a consent judgment in Divorce Cause No.86 of 2017?**

8. Counsel cited section 82 of the Civil Procedure Act; and the case of Nakivubo Chemists (U) Ltd [1979] HCB 12; to submit that the consent judgment in Divorce Cause No.86 of 2017 was entered in error as it did not address property that the applicant and the respondent had jointly acquired during the subsistence of marriage including the matrimonial home at Kyaggwe Block 83 plot 463 land at Mukono; the consequence of the judgment entered by gross errors of her counsel deprived her of her right to own property guaranteed under Article 26 of the Constitution of the Republic of Uganda; counsel cited Harani Vs. Kassam (1952) 19 EACA 131,

# **Court's determination:**

- 9. The law relating to review is provided for under **section 82 of the Civil Procedure Act** which stipulates that; *"Any person considering himself or herself aggrieved by a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred may apply for review of the judgment to the court which passed the decree or order".* - 10.**Order 46 rule 1 of the Civil Procedure Rules S. I 71-1** provides that*; "Any person considering himself or herself aggrieved by the decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter of evidence which after the exercise of due diligence was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of record, or for any other sufficient reason, desire to obtain a review of the decree passed or order made against him or her, may apply for review of judgment to the court which passed the decree or made the order;"* - 11.. The Supreme Court in *Attorney General & Uganda Land Commission Versus James Mark Kamoga & Another S. C. C. A No. 8 of 2004;* noted that the provisions of Order 46 r.1 are so broad that they are applicable to all decrees including consent decrees.

- 12. The applicant must prove that she suffered a legal grievance as a result of the consent judgement that wrongly deprived her of something or wrongfully or affected her title to something.(see; *Mohamed Allibhai V W. E Bukenya Mukasa & Departed Asians Property Custodian Board Supreme Court Civil Appeal No. 56 of 1996*); The applicant contends that having been married to the respondent her interests in the matrimonial home were not considered in the consent judgment; since it is not disputed that she was a wife she would be an aggrieved person; - 13. Following the petition for divorce by the respondent the parties entered into a consent; the consent Judgment is dated 22/3/2018, signed by both the petitioner and the respondent; the respective counsel for both parties appended their signatures; the consent judgment was endorsed by the Deputy Registrar on 11/4/2018; - 14. The consent judgment is on the following: that the marriage between the petitioner and the respondent be dissolved and a decree Nisi be issued; the land jointly purchased by the petitioner and the respondent be divided in equal shares (50% each) and the part that is developed on the said land by the petitioner should constitute part of his share; that an independent surveyor be appointed by both parties to divide the said land; that the costs of the said surveyor be visited on both parties at equal share; each party bears their costs. - 15. The applicant who was the respondent in the DC **NO.86 OF 2017)** now prays that the consent judgment be reviewed on account of misrepresentation and mistake or error apparent on the face of the record; that the matrimonial property comprised in Kyaggwe Block 83 formerly 509 (now plot 1197 and 1996) was owned jointly by her , the respondent and a one Okumu David who was not a party to the divorce proceedings; the matrimonial property at Mukono should be included in the consent;the fact that Okumu David held an interest in the property is not disputed by the respondent; however, the respondent asserts that he purchased the interest of Okumu David by giving him a motorcycle equivalent to UGX 6,000,000/=; - 16. The pleadings are silent on the said third party claim by Okumu David and also the land comprised in Kyaggwe Block 83 plot 463 land at Mukono;a judgment can only be reviewed when the pleadings and evidence have been considered but in preparing a consent there is an error or where due diligence could not have revealed additional information or there was evidence that could not have been secured on account of an error I have perused the record, the respondent has not

adduced evidence as proof that he entered into any transaction with the said Okumu David; neither was the applicant aware of the aforesaid transaction.

- 17. Section 82 of the Civil Procedure Act provides for the aggrieved party's right to apply for a review of judgement to the court which passed the decree and court may make such order as it thinks fit. The grounds for allowing an order for review are provided for under Order 46 Rule 1 of the Civil Procedure Rules to wit; '*Any person considering himself or herself aggrieved— 1. (a) by a decree or order from which an appeal is allowed, but from which no a p p e a l h a s b e e n p r e f e r r e d ; o r (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order.'* - 18. Like in all civil matters the burden to prove the grounds for review lies with the applicant.(see **Okech Vs Odong [2015] UGHCLD 4);**Courts have considered section 82 of the Civil Procedure Act and O 46 and restated the grounds for review. as ; i)*There is a mistake or error apparent on the face of record; ii)Discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge; or could not be produced at the time the decree was passed; iii) Any other sufficient reason exists;(*see Fx Mubuke Vs UEB , HCMA98 of 2008*).* - 19. **In Kampala Capital City Authority v Nabimara & 10 Ors (Miscellaneous Application 321 of 2019) [2020] UGHCCD 84 (08 May 2020);** Justice Musa

Ssekaana stated **:***'Review means re-consideration of order or decree by a court which passed the order or decree. If there is an error due to human failing, it cannot be permitted to perpetuate and to defeat justice. Such Mistakes or errors must be corrected to prevent miscarriage of justice. The rectification of a judgment stems from the fundamental principle that justice is above all. It is exercised to remove an error and not to disturb finality. Reviewing a judgment/ruling based on mistake or error apparent on the face of the record can only be done if it is self-evident and does not require an examination or argument to establish it';'*I hold the same view.

- 20. The ground raised in this application is that the consent was not appreciated by the applicant(respondent therein) because her lawyer did not capture what she had told him to do; that negligence of counsel should not be visited on a litigant; that the property stated in the consent excluded the matrimonila home and the one that belonged to a third party ; - 21. The law on consent judgment is that a consent judgment is based on the new contract /agreement of parties; the same rules that govern contracts apply; the consent judgment therefore cannot be set aside except for illegality, fraud, or mistake. - 22. The conditions for reviewing a consent judgment were earlier considered in **Hirani Vs Kassam (1952) 19 EACA 131**, which adopted and approved the following passage from Seton of Judgments & Orders, 7th Edition. Vol 1 p. 124:"Prima facie, any order made in the presence and with the consent of 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 contrary to the policy of the Court --- or if 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 the Court to set aside an agreement'.

- 23. In **Attorney General & Anor Vs James Mark Kamoga &another SCCA No. 8/2004;** court held**;**"--- It is a well-settled principle, therefore, that consent decree has to be upheld unless it is violated by reason that would enable a Court to set aside an agreement such as fraud, mistake, misapprehension or contravention of court policy. This principle is on the premise that a consent decree is passed on terms of a new contract between the parties to the **consent judgment** ----."(see also Migadde v Musoke & 4 Ors (Miscellaneous Cause 107 of 2017) [2020] UGHCFD 9 (26 June 2020);(emphasis supplied). - 24. A consent must fit within and emanate from pleadings; it can not be amended to include facts that were not pleaded in the first place because parties are bound by their pleadings; in this case the suit property stated in the petition and the cross petition is Kyaggwe Block 83 formerly 509 (now plot 1197 and 1996); nowhere in the pleadings is the interest of Okumu David in the property or any other property mentioned; it can not be introduced by reviewing a consent judgment when it was never an issue in the first place; otherwise if it were legally tenable one would keep reviewing a judgment to include all future related issues; - 25. The pleadings were never amended to include the claim to the matrimonial home or the said third party claims; evidence is presented to prove facts as per filed pleadings; if parties to a suit wish to include facts outside those hitherto pleaded they must seek leave to amend their pleadings; for the duty of court is to determine issues arising from pleadings and not all issues that may later be related to pleadings. - 26. Order 6 rule 6 of the Civil Procedure Rules provides:*'The defendant or plaintiff, as the case may be, shall raise by his or her pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is*

*either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, limitation act, release, payment, performance, or facts, showing illegality either by statute or common law';*Consequently Order 6 rule 7 provides; *'No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading'*;

- 27. The said position of the law that parties are bound by their pleadings has been considered by courts in a number of cases. In *Jani Properties Ltd versus Dar-es-Salaam City Council (1966) EA 281; and Struggle Ltd versus Pan African Insurance Co. Ltd (1990) ALR 46 -47***,** court rightly observed that;"*the parties in Civil matters are bound by what they say in their pleadings which have the potential of forming the record moreover, the Court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings" (see also Semalulu versus Nakitto High Court Civil Appeal No. 4 of 2008)"* **and Kitaka and 12 Others v Mohamood Thobani (Civil Appeal 20 of 2021) [2021] UGHCLD 177 (23 November 2021);**where the above cases were cited; - 28. In order to warrant a review of consent judgment on the ground of an error apparent on the face of record; such error must have been committed by court; in the case of **Paul John Mhozya V. Attorney General of the United Republic of Tanzania, East African Court of Justice Application No.14 of 2018**: court had this to say; "a review may be granted whenever, the court considers that it is necessary to correct an apparent error or omission on the part of the court, the error or omission must be self-evident and should not require an elaborate argument to be established…" - 29. In the case at hand the applicant ought to have proved that her instructions were not followed by her counsel; she did not she wrote a letter received by this court on 23/03/2018 confirming she had signed the consent but would not be present

at the sealing; she went ahead and signed the consent therefore she is deemed to have read through and understood it; the defence/plea of non est factum ('*it is not the deed'*) was neither pleaded nor proved so even if the additional properties had been pleaded, the defence/plea can not work;(see **Saunders v. Anglia Building Society [1971] AC 1004**).

Since the third party claim is not disputed the parties are advised to consider filing another suit to clarify on that aspect.

## **Costs**

30. Considering that the parties had reached a consent it would be in the interest of better relationship, (albeit in divorce) for each party to bear their own costs;

In the premises the application fails and it is hereby dismissed; I make the following Orders;

- 1. The terms of the consent judgment relating to the property entered on 11th day of April, 2018 in Divorce Cause No. 86 of 2017 are upheld. - 2. Each party shall bear their own costs.

Ketrah Kitariisibwa Katunguka. Judge. 28/02/2023.

> D e l i v e r e d b y e m a i l to:emmel182@yahoo.com,eyotres@gmail.com,admin@barenzadvocates. com

The Ruling delivered by email on 28/02/23 at 11.52 am is hereby recalled under section 99 of the Civil Procedure Act, to correct the error in the following: the preamble to the orders at page 9; *'In the premises the application fails and it is hereby dismissed with costs*'; to instead read; *'In the premises the application fails and it is hereby dismissed';* for order no. 1 to read *'The terms of the consent judgment relating to the property entered on 11 th day of April, 2018 in Divorce Cause No. 86 of 2017 are upheld'* instead of reading; *'The terms of the consent judgment relating to the property; entered on 11th day of April, 2018 in Divorce Cause No. 86 of 2017 are hereby set aside';* the rest of the ruling remains the same.