Musisi & 2 Others v Kikulwe & Another (Miscellaneous Application 775 of 2024) [2024] UGHCLD 158 (12 June 2024)

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(LAND DIVISION)**

#### **MISCELLANEOUS APPLICATION NO 775 OF 2024**

# **ARISING OUT OF CIVIL SUIT NO.796 OF 2007**

**1. MUSISI NAKIBINGE**

**2. TEOPISTA NAMUYABA**

**3. SSERWANDO ANDREW ::::::::::::::::::::::::: APPLICANTS VERSUS**

**1. KIKULWE AHMED**

**2. GLORIA NAMIRO ::::::::::::::::::::::::::::::: RESPONDENTS**

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

## *Introduction;*

**1.** This an application by Notice of Motion brought under section 82 and section 98 of the CPA, Section 33 of the Judicature Act, Order 46 rules 1 (a), 3(2), 6 and 8 of the Civil Procedure Rules, for orders that;

- i) That the Consent Judgement entered into between the Respondents in Civil Suit No.796 of 2007 on the 1st day of October 2010 be Reviewed; - ii) The consent judgement order and decree in Civil Suit No.796 of 2007 be set aside for the suit to be heard and determined on its merits. - iii) That the costs of this Application be provided for.

## *Applicant's Evidence;*

2. The Application is supported by the Affidavits of the 1st and 2nd Applicant in which they briefly state;

i) That the 1st applicant, the 1st Respondent and Wasajja were granted Letters of Administration of the Estate of the late Kimbugwe Erieza.

ii) That the 2nd and 3rd Applicants are among the entitled beneficiaries to the Estate of the late Kimbugwe Erieza. iii) That the 2nd Respondent herein filed Civil Suit No.796 of 2007 as the Plaintiff against the 1st and 2nd Applicants and the 1st Respondent herein.

iv) That the Defendants therein defended the suit in their capacity as the Administrators of the Estate of the late Kimbugwe Erieza.

v) That unknown to the 1st Applicant, the 1st Respondent colluded, connived and conspired with the 2nd Respondent (the Plaintiff in the main suit) and entered into a consent Judgement in settlement of the suit without the involvement of the 1st Applicant as a party to the suit and as co-administrators.

vi) That the 1st Applicant herein never signed nor agreed to the terms of the consent Judgement yet they were parties to the suit.

vii) That the 1st Respondent acted solely without the consent and knowledge of other Administrators to enter into a consent judgement with the Plaintiff/2nd Respondent.

viii) That the 1st Applicant herein never signed nor agreed to the terms of the consent judgement yet they were parties to the suit.

ix) That the consent settlement entered into was to the detriment of the Estate of the late Kimbugwe Erieza all intended to benefit the Respondents herein.

x) That the consent judgement and decree substituted the Estate suit property worth approximately Ugx

200,000,000/= with a sum of approximately Ugx 10,000,000/= which is detrimental to the Estate.

xi) That there was an error apparent on the face of the record where the 1st Applicants herein did not agree and/ or authorize the consent judgement as parties to a suit and as Co-administrators to the Estate of the late Kimbugwe.

xii) That the said consent judgement and order constituted misrepresentation of the interests of the 1st and 2nd Applicants and all other entitled beneficiaries to the Estate of the late Kimbugwe, who were sued jointly with the 1st Defendant/1st Respondent herein but were not parties to the consent judgement.

xiii) That there was an error apparent on the face of the record as the 1st Applicant herein was not offered a right to be heard before entering into a consent judgement. xiv) That the consent judgement was fraudulently and illegally entered into by the Respondents without the knowledge and involvement of the 1st Applicant who was a party to the suit to the detriment of the Estate.

xv) That no consent judgement was ever signed by the parties to the suit be it the 1st Applicant or the Respondents themselves.

#### *Respondent's Evidence;*

3. Gloria Namiro the 2nd Respondent replied to the Applicants' Affidavit through her Affidavit in Reply in which she stated that;

i) That the Respondent shall raise a preliminary objection to the effect that the application is frivolous, devoid of merit and offends provisions of the law and consequently pray that it is struck out of the court record and the Application is dismissed.

ii) That she did not collude, connive or conspire with the 1st Respondent in Civil Suit No.796 of 2007. the 1st Applicant as a party to the case and the entire family of the late Kimbugwe are the ones who proposed the settlement. They were fully involved and knew what was happening.

iii) That in further reply to paragraph 3, I filed Civil Suit No. 796 of 2007 in this court because Kikulwe Ahmed had put a caveat on her father's land without any lawful

reason and the family of the late Kimbugwe Erieza was claiming it as their property.

iv) That the trial court directed the Respondent to construct a house for the Defendants therein within a period of 2 years where after the parties had to report to court about the same.

v) That the family of the late Kimbugwe Erieza still stays in the same house the Respondent constructed to date and they continue to occupy it without any interruption. vi) That there was no consent extracted or signed by the parties. It was only agreed between the parties that a house is constructed by the Respondent as had been requested by the family of the late Kimbugwe Erieza. This is the same house they have been using for over 12 years.

vii) That in reply to paragraphs 5,6,16,17,18 of the affidavit in support of the Application, the Respondent is not aware of any consent order in Civil Suit No.796 of 2007. that she did not sign or extract any order and only saw it through this Application.

viii) That in reply to paragraphs 9 and 14 of the affidavits in support, there was no consent as alleged. **ix)** That even if there was a consent order, the 2nd and 3rd applicants were not party to Civil Suit No.796 of 2007 and cannot challenge its contents.

#### *Rejoinder;*

4. That both Applicants rejoined to the Respondent's Affidavit in Reply briefly as follows;

i) That in response to paragraph 3, the Affidavit in support is based on true facts and does not contain any falsehoods whatsoever.

ii) That at all material facts, the 2nd Applicant knew that the house being constructed belonged to her son the 1st Respondent and she had no knowledge of the arrangement between the 1st and 2nd Respondents.

iii) That in response to paragraph 6, the 2nd Applicant states that her late husband has never sold the suit land at Semuto to anyone.

iv) That in response to paragraph 7, the 2nd Respondent together with the 1st Respondent entered into a consent to exchange the Estate Property of the late Kimbugwe.

v) That in response to paragraph 8, none of the family members has ever agreed with the 2nd Respondent to construct for them a house as at all material times, the family of the late Kimbugwe knew the house belonged to the 1st Respondent.

vi) That in response to paragraph 9, the family members were not aware of any settlement in Civil Suit No.976 of 2007 which deprives them of their entitlement.

## *Supplementary Affidavit;*

5. Gloria Namiro swore a supplementary Affidavit in reply to the 2nd Applicant's Affidavit in which she stated;

i) That the 2nd Applicant is the widow to the late Kimbugwe Erieza and she stays on the land in question. She was present when the 2nd Respondent was constructing the house and has never objected to the same.

ii) That the Applicant's husband had land at Semuto but he sold it and it ceased being his property.

iii) That the family of the late Kimbugwe Erieza are the ones who suggested through the defendants that the 2nd Respondent constructs for them a house as her late father had promised their father, she constructed the house and they never objected to it at all. Even when their brother passed on, the family thanked her for giving them the house.

# *Representation;*

6. The applicants were represented by Muwonge Ukasha of M/S Nsibambi & Co. Advocates whereas the respondents were represented by Frank Semuju of M/S Kodili & Co. Advocates. Both Parties filed written submissions which I have considered in the determination of this application.

# *Issues for Determination;*

*i) Whether there are any grounds warranting a review and setting aside a consent judgement and Decree vide Civil Suit No.796 of 2007?*

#### *Resolution and Determination of issues*

7. Section 82 (b) of the Act refers that Any person considering himself or herself aggrieved by a decree or order from which no appeal is allowed by the Civil Procedure Act may apply for review of judgement to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.

- 8. It is important to note that this application is not brought under that law. It is brought under 0.52 rules (1) and (2) of the Civil Procedure Rules and Section 98 of the Act. The catch words in Section 82 are, *any person considering himself/herself aggrieved.* This in my view includes even a party who consents to a decree or order. He/She can be aggrieved by it if it was induced through illegality, fraud or mistake. - 9. The law permits such consent judgements to be set aside in appropriate circumstances. The guiding factor is whether there is sufficient reason for reviewing or setting aside the consent judgement or order. - 10. A consent judgement cannot be varied or discharged unless obtained by fraud, collusion or in a manner contrary to the Court policy. A consent judgement is an agreement of the parties which can be rescinded on terms similar to grounds that govern rescinding of contract which include mistake, mis-representation, fraud or generally absence of freedom to contract or absence of consent of the parties against whom the contract is intended to be enforced.

- 11. In the case of *Brooke Bond Liebig (T) Ltd versus Mallya 1975 EA 266* and the Supreme Court of Uganda followed it in *Mohamed Allibhai versus W. E. Bukenya and Another Civil Appeal No.56 of 1996 (unreported).* Therefore, it is a well settled principle that a Consent Judgement has to be upheld unless it is vitiated by a reason that would enable a court to set aside an agreement, such as fraud, mistake, misapprehension or contravention of court policy. - 12. Counsel for the Applicant submitted that the impugned Consent Judgement and consent order vide Civil Suit No.796 of 2007 are illegal and against court policy on the following grounds;

i) Collusion between the 1st and 2nd Respondent to deprive the entitled Beneficiaries of their entitlement.

ii) Consent violated the 1st Applicant's Right to be heard iii) Administrators did not act jointly in agreeing to the terms of the consent.

iv) Administrators acted in detriment to the Estate.

13. Counsel for the Respondent in his submissions submitted that the consent amounted to new agreement

between the parties whereas the applicants submitted that the consent was to deprive the beneficiaries of their entitlement but however in the impugned consent judgement the 2nd respondent was to construct a house for the applicants.

- 14. The 1st Applicant during cross examination confirmed that the 2nd respondent constructed a house and it is being occupied by the brother to the Applicants, who was a party to the main suit. It therefore only amounts that the terms of the consent judgement were actually fulfilled. - 15. Parties to civil proceedings are free to amicably settle a dispute and consent to a judgement, decree or order being entered. The parties may do so orally before a judicial officer who then records the consent or they may do so in writing, affix their signatures and place the same for endorsement by the Court. - 16. In the case of **Ismail Sunderji Hirani v Noorali Esmail Kassam [1952] EA 131 and Attorney General & Uganda Land Commission v James Mark Kamoga & James Kamala, SCCA No. 8 of 2004 which cited with approval the following passage from Seton on Judgements and**

**Orders, 7th Edition, Vol 1, page 124, thus**; "Prima facie, any order made in the presence and with consent of Counsel is binding on all parties to the proceedings or action, and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of court … or if the 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 a court to set aside an agreement.''

- 17. In the instant matter, the Applicants' allegations are that the 1st and 2nd Respondents colluded to deprive the beneficiaries of their entitlement, the consent violated the 1st Applicants right to be heard, administrators did not act jointly in agreeing to the Terms of the consent and the administrator acted in detriment to the Estate. - 18. The position of the law is that the grounds for vitiation of a consent judgement must relate to the conduct of the parties during the execution of the same. - 19. A defect in the original agreement or dealings between the parties that led to the filing of the suit will not vitiate a consent judgement that is properly entered upon the

agreement of the parties. The alleged vitiating factor must relate to the execution of the consent as stated in the case of **Chris Mubiru vs Joseph Mwanja Misc Application No.1092 of 2020.**

- 20. As submitted by the Applicants, the 1st Applicant who was the 3rd Defendant in Civil Suit No. 796 of 2007 was never made a party to the consent judgement as the 1st and 2nd Respondents entered into a consent judgement settlement without her involvement as she avers in her affidavit in support. - 21. It should be noted that Parties to civil proceedings are free to amicably settle a dispute and consent to a judgement, decree or order being entered. This means that this consent should be between all parties to a suit and should involve all parties, where one of the parties to the suit is not involved in coming to the consent, then that consent is void and can set be set aside. - 22. Furthermore, where an estate has two or more administrators, they cannot carry out a transaction or proceeding regarding the estate or make any decisions of the estate as individuals.

- 23. All co- administrators must be involved and if any of the administrators is left out, that transaction can be said to be void under the law. - 24. The 1st Applicant states in her Affidavit that as a coadministrator to the Estate of the late Kimbugwe, she did not authorize the consent but however her coadministrators entered into it. - 25. Section 272 of the succession Act as amended states that where several executors or administrators are appointed jointly, they must also act jointly at all times, none of them can act single handedly and bind the estate without the consent or authority of other administrators. - 26. This is also confirmed by the Supreme Court decision in the case of **Silver Byaruhanga Vs Fr. Emmanuel Ruvugwaho and Anor Civil Appeal No. 09 of 2014** which stated that "… was required under section 134(4) of the Registration of Titles Act to involve all the other named executors who had proved the will together with him and granted probate in all transactions involving the suit land. The fact that he had proceeded to singly execute the same agreement without involving the co- executors contravened

section 134(4) of the RTA". therefore, the consequence of such transactions are null and void and be set aside.

- 27. In view of the above, I am of the view that the applicants have made a case for review of the consent judgement entered in Civil Suit No.796 of 2007 on the 1st of October 2007. - 28. Therefor the instant application succeeds with the following orders; - i) That the consent judgement entered in Civil Suit No. 796 of 2007 on the 1st day of October, 2010 shall and is hereby set aside by this honorable court. - ii) That Civil Suit No.796 of 2007 is to proceed on its own merit. - iii) Each party to bear its own costs.

#### **I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **JUDGE**

# **12th/06/2024**