Microfinance Support Centre v Kasese Hospital & Another (Miscellaneous Application 2 of 2024) [2024] UGHC 1068 (14 November 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**MISCELLANEOUS APPLICATION NO. 2 OF 2024**

**(ARISING FROM HCT-01-CV-MA-0034-2024)**

**(ARISING FROM TAXATION MISCELLANEOUS APPLICATION NO. 41 OF 2023)**

**(ARISING FROM OS NO. 079 OF 2023)**

**THE MICROFINANCE SUPPORT CENTRE========================APPLICANT**

**VERSUS**

1. **KASESE HOSPITAL** 2. **BAGUMA JOHN HENRY==============================RESPONDENTS**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

Applicant represented by Orima and Co. Advocates

Respondent represented by Masereka, Mangeni and Co. Advocates

**RULING**

**BACKGROUND:**

This Application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act; Section 33 of the Judicature Act; Order 9 Rule 12, Order 52 Rules 1 and 2 and Order 6 Rules 19 and 20 of the Civil Procedure Rules seeking the following Orders:

1. The consent ruling and decree entered into on the 30th day of November 2023 by this Court be set aside. 2. The bill of costs be taxed in accordance with the Advocates (Taxation and Remuneration of Costs) Rules. 3. Costs of the application be in the cause.

The grounds for the Application are supported by the Affidavits of Simon Kibuto and Ijuka Joab and are briefly as follows.

The Respondents filed Taxation Application No. 41 of 2023 before this Court which was heard on 30th November 2023. At the hearing Counsel Ijuka Joab who was holding brief for Applicant’s lawyers entered into a consent decision by which the costs were taxed at UGX 15,040,000 and instruction fees allowed at UGX 11,280,000.

The Applicant contends that Counsel Ijuka acted contrary to his brief in the matter and illegally, fraudulently and erroneously entered into a consent arrangement with intent to defraud the Applicant. The Applicant further contended that they were shocked to have received a taxation certificate on 7th January 2024 showing the bill of costs allowed at UGX 16,227,500.

On 25th January 2024 the Applicant subsequently filed Taxation Appeal No. 7 of 2024 before this Court.

Counsel Joab Ijuka swore an affidavit in support of the application by which he conceded to having acted without instructions.

The Respondents filed an Affidavit in response sworn by Counsel Mangeni Peter Osinya who opposed the application and stated that the Respondents would raise a preliminary point of law to have the application dismissed.

Counsel Mangeni contended that the filing of this Application was an abuse of court process as this Court had already dismissed the Taxation Appeal No. 7 of 2024 for being filed out of time. It was further contended that the Applicant had not put forward any reasons why the consent should be set aside should be set aside as Counsel Ijuka had authority to represent the Applicant.

The Applicants through Counsel Simon Kibuuto filed an Affidavit in rejoinder by which they denied the Respondent’s assertions claiming that the Application was not an abuse of court process. The Applicants further claimed that the present Application was filed on 25th March 2024 prior to the ruling in Taxation Appeal No. 7 of 2024 and that furthermore the Applicants had discovered about the consent arrangement from the Respondents’ response to the appeal.

The Applicants further denied that Counsel Ijuka Jacob works for the Applicant or its lawyers and that he had simply been approached to hold brief. Furthermore, allegations of fraud were only attributed to Counsel Ijuka Joab and the Respondent’s lawyer to wit the Applicants attached a picture of a Whatsapp interaction ostensibly communicating instructions to Counsel Ijuka Joab.

**Submissions in support of the Application:**

Counsel for the Applicant reinforced the assertions of the Applicant arguing that a consent judgment can be reviewed or set aside if it is proved that the decision was reached though fraud, collusion, duress or any other sufficient reasons which would enable the court set aside the consent judgment. Counsel further argued that misapprehension or misstatement of material facts relating to the consent judgment were sufficient reasons to vitiate a contract per the decision of the Supreme Court in **Attorney General and Another v James Mark Kamoga and Another – SCCA No. 8 of 2004.**

Counsel argued that Counsel Ijuka’s actions involved ignoring his brief and furthermore concealment of his actions from the lawyer who had given him the brief. Counsel contended that these actions were fraudulent. Counsel further argued that Regulation 2(1) of the Advocates (Professional Conduct) Regulations prohibited advocates from acting without instructions and that by ignoring his brief, Counsel Ijuka had acted on a frolic of his own for which the Applicant could not be held liable. Counsel cited the decision in **Lakhman Bimji v Manor Developments Ltd – HCMA 105 of 2010** in that regard.

**Submissions in Reply:**

By way of response Counsel for the Respondent submitted that the Application was an abuse of court process having been filed alongside Taxation Reference Misc. Application No. 7 of 2024 both of which sought to revisit the consent decision reached in Taxation Application No. 41 of 2023.

Counsel further argued that Taxation Appeal No. 7 of 2024 was ultimately dismissed.

Counsel for the Respondents also argued that the Application did not present any sufficient grounds for the setting aside of the consent decision reached in Taxation Application No. 41 of 2023. Counsel contended that there was no evidence that Counsel Ijuka had a different set of instructions for which he had acted in contradiction. He further argued that there was no intent to defraud apparent in Counsel Ijuka’s actions

Counsel subsequently prayed the application be dismissed.

**ANALYSIS OF THE APPLICATION:**

Having considered the pleadings and submissions in this application I find that this Court has three main issues to address.

1. Whether this application is properly brought before this Court. 2. In the event that the first issue is resolved in the affirmative then whether the consent decision reached in Taxation Application 41 of 2023 can be set aside for fraud. 3. Remedies available for the parties.

**Whether this application is properly filed before this Court:**

In this matter the main contention of the Respondents is that at the time that the Applicant filed the present Application there was already a prior Application pending before this Court vide Taxation Appeal Miscellaneous Application No. 7 of 2024 by which the Applicant sought the same remedy to revisit the consent decision.

The Applicant denied the abuse stating that in the Affidavit in rejoinder the ruling in Miscellaneous Application No. 7 of 2024 was delivered on 26th April 2024 while the present Application had been filed a day earlier on 25th March 2024. Counsel Kibuuto further stated in the Affidavit in Rejoinder that the Applicant had only learnt about the consent agreement when the Respondents filed their reply to Miscellaneous Application No. 7 of 2024 on 21st March 2024. This had then prompted the Applicant to file the present application.

However, Counsel Kibuuto also stated in his Affidavit in support of the application that the Applicant had been shocked to receive a taxation certificate in the sum of UGX 16,227,500 on the 7th of January 2024 as evidenced by the annexed email marked “C”. To me this email begs the question that, having been notified about the taxation certificate, how is it that the lawyers for the Applicant never saw fit to crosscheck with Counsel Joab Ijuka what had transpired in Taxation Miscellaneous Application No. 41 of 2023 until 21st March 2024? There was a gap of nearly three months in between during which a prudent lawyer ought to have established from their colleague who had held brief as to what had transpired.

What is apparent to me is that there was negligence apparent in the actions of M/S Orima and Co. Advocates as it is evident that they had constructive notice of the decision reached by consent in Taxation Misc. Application 41 of 2023 as early as 7th January 2024 but they did nothing about it proceeding instead to file Miscellaneous Application No. 7 of 2024 on 25th January 2024.

However, despite the above, there is nothing in the law and the circumstances of this matter that prevents the Applicant from having brought this present Application before this Court. The question of the consent reached in Taxation Misc. Application No. 41 of 2023 was never traversed as an issue as the Application had been determined to have been filed out of time. Furthermore it was not one of the grounds upon which the Application was founded.

However, in light of the fact that Taxation Miscellaneous Application No. 41 of 2023 was dismissed by this Court for having been filed out of time, which decision has not been appealed or set aside, is it open to the Applicant to apply to set aside the decision in Taxation Miscellaneous Application No. 41 of 2023?

One could make the argument that Miscellaneous Application No. 7 of 2024 had been filed without knowledge of the fraud alleged by the Applicant in the consent decision. However, it is clear as I have already pointed out the Applicant knew that something had gone wrong when they received the taxation certificate on 7th January 2024 and that is why they appealed albeit unsuccessfully.

To me the fact that the Applicant had constructive notice of the circumstances that they say amount to fraud for which they now to set aside the consent decision, introduces something of a mischief on the part of the Applicant to try to defeat the fact that in the absence of the fraud allegations the Applicant was already time-barred and could not appeal.

In that regard I am inclined to agree with Counsel for the Respondents that the circumstances surrounding the filing of this application qualify as an abuse of court process.

Counsel for the Respondent cited the case of **Attorney General and Another v James Mark Kamoga and Another – SCCA No. 8 of 2004** where Mulenga JSC (RIP) quoting Black’s Law Dictionary 6th Edition stated that,

“*A malicious abuse of legal process occurs when the party employs it for some unlawful object, not the purpose which it is intended by law to effect; in other words, a perversion of it.”*

In this matter, I hold the view that the Applicant having been frustrated in the appeal against Taxation Misc. Application 41 of 2023 by time limit and the fact that the decision had been arrived at by consent decided to pursue the option of fraud as a last ditch attempt to side-step shoddy representation by their lawyers. This is because no reasonable and diligent advocate would receive an objectionable taxation certificate and proceed to appeal it without even bothering to establish what transpired in court and yet by their own pleadings this is what the lawyers for the Applicant are admitting as having taken place.

In light of the above, I find that this Application was filed improperly filed before this Court as an abuse of court process as a means of circumventing the earlier decision of this Court dismissing the Miscellaneous Application No. 7 of 2024. To me it would be unfair to deny the Respondents the fruits of their litigation on grounds fraud which the Applicants have not even proved against them.

Notwithstanding the above, I shall still go ahead to address the second issue in this matter in the event that I am wrong with regard to my finding on the first issue.

**Whether the consent decision in Taxation Misc. Application No. 41 of 2023 can be set aside for fraud.**

In this matter the Applicant’s primary argument was that there was fraud apparent in the consent decision because Counsel Joab Ijuka who was holding brief for Counsel Ricky Mudali from M/S Orima and Co. Advocates had acted contrary to his brief and proceeded fraudulently and illegally enter a consent agreement with the Respondent’s lawyer.

The law on setting aside consent judgments on grounds of fraud as determined in the Supreme Court case of **Attorney General and Another v Kamoga and Another** (cited above) is that consents judgments are treated as fresh agreements and can only be interfered with on limited grounds such as illegality, fraud or mistake.

Furthermore, in order to establish fraud the Supreme Court held in the case of **Kampala Bottlers Ltd v Damanico (U) Ltd – SCCA 22 of 1992** that fraud must be proved strictly the burden being heavier than on a balance of probabilities in civil matters.

In this matter the circumstances as stated by Counsel Simon Kibuuto of M/S Orima and Co. Advocates in his Affidavit in Support of this Application are that Counsel in personal conduct of the taxation matter who he later identified as Ricky Mudali had instructed Counsel Ijuka Joab of the Legal Aid Clinic in Fort Portal to hold brief at the taxation hearing.

Counsel Kibuuto went on to state that Counsel Ijuka Joab had fraudulently entered into a consent with the Respondents’ lawyers contrary to his instructions. He goes on to state that the consent was entered with the intent to defraud the Applicant and as proof that Ijuka acted contrary to his brief a printed screenshot of a Whatsapp message purportedly reflecting the “instructions” to Ijuka. The copy was annexed and marked as “A”.

I have examined the annexed document and noted that Counsel Kibuuto made no effort to explain the means by which the screenshot in question was raised. There is no indication as to who was communicating with Ijuka and whereas the conversation captured appears to be about a taxation matter on the 30th of November 2023, the conversation only captures the fact that whoever was communicating was opposed to the instruction fees in the claim and the conversation is cut short. It is therefore impossible to determine the context in which this conversation took place and whether it constituted the entirety of the brief given to Ijuka.

However, Joab Ijuka swore a supplementary affidavit in support of the Application by which he admits that he had no authority or instructions to enter any consent on behalf of the Applicant. It is only in this regard that I am inclined to accept that he had no instructions to enter a consent agreement on behalf of the Applicant. Counsel for the Applicants submitted that the actions of Ijuka could not be binding on the client as he acted without instructions and was essentially acting on a frolic of his own.

However, in determining whether Counsel Ijuka’s actions qualify as grounds for setting aside the consent agreement one must take into account the Constitution (Adjournments for Courts of Judicature) (Practice) Directions. Paragraph 8 thereunder provides that an Advocate holding brief for another Advocate shall ordinarily be expected to have instructions to proceed with the matter.

The aforementioned provision establishes that as a matter of practice before the Courts, any Advocate who appears for purposes of holding brief for another Advocate is presumed by Court and the opposite party to have valid instructions to handle the matter.

I am persuaded by the argument of Counsel for the Respondents that Regulation 6 of the Advocates (Professional Conduct) Regulation makes an Advocate personally responsible for the client’s work. Furthermore Regulation 5(2) of the said Regulations also specifically provide that where an Advocate or their partner or professional assistant is unable to appear then the Advocate may brief another advocate acceptable to the client to appear.

Going by the provisions above, Ricky Mudali of M/S Orimo and Co. Advocates requested Counsel Ijuka to hold his brief in the taxation matter. At that point in the eyes of court, it was as if M/S Orimo and Co. Advocates who had appeared before Court. The fact that Counsel Ijuka did not act in accordance with the brief did not mean he lacked instructions. He had the approval and therefore authority to hold the brief for M/S Orimo and Advocates. The fact that he deviated from the brief did not mean he lost authority to represent the Applicant. He still had the authority by virtue of the brief admittedly given to him by M/S Orimo and Co. Advocates despite their strenuous efforts to distance themselves from Counsel Ijuka.

This therefore leads me to consider whether in the circumstances above, Counsel Ijuka’s actions can lead to the setting aside of the consent agreement reached in Taxation Miscellaneous Application No. 41 of 2023. Given that the Practice Directions cited above create a presumption for both Court and the opposite party that an Advocate holding brief for another Advocate has valid instructions to proceed with the matter, I do not consider the actions of the Advocate who acts contrary to instructions while holding brief to be a valid basis for setting aside a consent agreement especially where the actions of the Advocate in question are said to have been motivated by fraud.

While it is obviously unfortunate for the client whose advocate decides to act contrary to instructions and in the process commits the client to pay an unwarranted sum of money, the bigger question is whether one party should have to be subjected to new proceedings on account of a mistake or fraud (which in this case was not proved) on the part of Counsel for the opposite party. In my view this should not be the case as the offended client, in this case the Applicant, has the option to pursue a legal remedy against their lawyers who acted against their interests by their unsanctioned association with Counsel Ijuka.

In this case there is not even evidence that M/S Orimo and Co. Advocates ever sought the approval of their client before asking Counsel Ijuka to hold brief contrary to Regulation 5(2) of the Advocates (Professional Conduct) Regulations. This therefore makes M/S Orimo and Co. Advocates directly answerable to their client for whatever challenges arose from the unsanctioned arrangement between themselves and Counsel Ijuka.

If there had been sufficient evidence proving that Counsel Ijuka had acted in complicity with the Respondents to defraud the Applicant then I would be inclined to set aside the consent agreement. However, if I am to go by the case cited by Counsel for the Applicant, **Kengroup Companies Ltd v Standard Chartered Bank & 2 Others – HCMA 116 of 2012** wherein the Court cited with approval **Hirani v Kassam (1952) EA 313.** It was emphasized that a consent judgment derives its legal effect from the agreement of the parties and may only be set aside on the same grounds upon which a contract may be set aside or rescinded because it is governed by the ordinary principles that govern a contract. As I already pointed out relying on the Supreme Court decision in **Attorney General and another v Kamoga and Another** (cited above) consent judgments by their very nature as fresh agreements can only be set aside for illegality, fraud or mistake none of which have been proven here.

At this point it is also pertinent to note that in the absence of evidence of fraud on the part of the Respondents and the fact that by the admission of the Applicant’s own lawyers, Counsel Ijuka was holding their brief, the Respondents also benefit from the protection of estoppel under Section 114 of the Evidence Act. It is provided thereunder that,

*“When one person has, by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he or she nor his or her representative shall be allowed, in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing.”*

The only clear evidence in this matter is that by his own admission Counsel Ijuka acted without instructions and this alone cannot form the basis for this Court to set aside the consent decision in taxation. Once Counsel Ijuko received the brief from the Applicant’s lawyers, the said lawyers and by necessary implication the Applicant became bound by his subsequent actions in Court. This is because short of evidence to the contrary, neither the Court nor the Respondents had any reason to believe he was acting contrary to instructions. The fact of his not having instructions to consent does not change the fact that he was authorized to hold brief. This fact is one that the Applicant is prevented by estoppel from denying. In the case of **In the Matter of Alexander J. Okello and In the Matter of Kayondo and Co. Advocates – HCCS No. 8 of 1995,** Berko J (as he then was) held that estoppel is a principle of equity and justice when a man has by his own words or conduct, led another to believe that he may safely act on the faith of them and that other does act on them, he will not be allowed to go back on what he said or did when it would be unjust or inequitable for him to do so.

I accordingly hold that the Applicant never proved any fraud as to warrant setting aside of the consent agreement in Taxation Miscellaneous Application No. 41 of 2023. The only issue in this matter arose out of an unsanctioned arrangement between the Applicants’ lawyers and Counsel Ijuka for which estoppel blocks the Applicant from having the consent decision set aside. To that extent I cannot rely on what was clearly an error in judgment of the Applicant’s lawyers to deny the Respondents the fruits of their litigation.

Before I take leave of this matter I must point out that it is not the responsibility of the Courts to provide solutions to advocates as a result of bad decisions or poor judgment of Counsel in matters of holding brief. It must be understood that if an advocate requests another advocate to hold their brief then the advocate making the request is bound by the actions of their fellow advocate even if they act contrary to the brief.

Any consequences that come as a result must therefore be squarely addressed by both the advocate holding the brief and the one who originated the brief. They are responsible in equal measure for any liability occasioned to the client due to the failed brief especially where there is no evidence that the client approved the arrangement.

**ORDER:**

For the reasons outlined above I hereby dismiss this Application with costs to the Respondents.

**David S. L. Makumbi**

**JUDGE**

**04/11/24**